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m \ 

OF 1864 

SERIES XIX Nos. 8-9 





History is past Politics and Politics are present History. Freeman 


OF 1864 


Master of History, Country School for Boys, Baltimore 








This study was undertaken at the suggestion of Dr. 
Bernard C. Steiner, of the Johns Hopkins University, and 
is an attempt to trace one of the most important movements 
in Maryland history. Although obscured and complicated 
by the momentous events which were then rending the life 
of the nation to its very foundations, its most important 
phase was the effort to bring about the total abolition of 
slavery in the state. President Lincoln's Emancipation 
Proclamation of September 22, 1862, did not apply to 
Maryland, as this state was not in rebellion, hence the local 
movement was necessary in order to carry out the policy of 
the National Government, and the Constitution of 1864, 
with its prohibitory clause in regard to slavery, was the 

The subject is divided as follows: Part I. treats of the 
political movement leading to the call of the Constitutional 
Convention; Part II. gives an account of the sittings of 
that Convention and the formation of a new Constitution; 
Part III. tells of the acceptance of the Constitution by the 

The Proceedings and Debates of the Convention, the 
State Documents and Legislative Proceedings of the 
period, and the contemporary newspapers have been my 
chief sources, supplemented in part by personal conversa- 
tion with some of those who took part in the movement. 

W. S. M. 

Baltimore, May, 1901. 



It is a well-known fact that the two powerful and op- 
posing forces of " freedom " and " slavery " battled with 
each other for years in the economic and political life of 
our country, till they ended in the Civil War of 1861-5. In 
fact, around these forces centred all the history of the 
United States up to that time, for they were born of our 
Constitution, were nursed into self-assertive strength under 
its provisions, and grew as the nation expanded, step by 
step, year by year, from one administration to another, 
till finally they overthrew all other ties of political fealty, 
religious association, and patriotic allegiance, and asserted 
themselves in the great question of the hour. This ques- 
tion was: Shall the nation be free in its domestic rela- 
tions as in its government, or shall it countenance and pro- 
tect negro slavery? 

Although veiled under the immediate doctrine of 
" State's Rights," this fundamental contention soon pushed 
its way to the fore, and in a terrible struggle of brother 
against brother, was settled forever on the basis of negro 
emancipation and the integrity of the Union. 

The state of Maryland, situated midway between the 
North and the South, the two great sections of the country 
that championed the respective sides of the question, united 
within her borders both the slave system, dominant in 
the southern counties, as well as the practically free labor 
of the northern counties and the mountain districts. To 
these must be added the city of Baltimore, a seething 
cauldron of divided political sentiment, and which was often 
opposed by the remainder of the Commonwealth in matters 
of state polity. Hence Maryland naturally became the 
scene of bitter strife, consequent upon and contempora- 

8 Tfte Maryland Constitution of 1864. [354 

neous with the larger struggle that was rending our nation 
to its very foundations. 

Proximity to the city of Washington caused a very close 
surveillance of the state on the part of the Federal au- 
thorities, leading at times to direct interference in state 
and local affairs by them, as the loyalty of Maryland was 
in many ways very necessary to the safety of the National 
Government. One can well realize this by pausing to think 
of the consequences to the Union of having its capital en- 
tirely within the bounds of a hostile territory a thing 
practically impossible, unless unbroken military success is 
presupposed, and even then a matter of great difficulty. 

On the part of Maryland, the very fact of being a slave 
state naturally bound her more closely to the South, 
although at the beginning of the secession agitation during 
the latter part of Buchanan's administration probably the 
larger part of the people were in favor of standing by the 
Union. On the other hand, a majority were strongly op- 
posed to coercing the South, and after the outbreak of 
hostilities, this opposition to the war ended in quite a 
change of sentiment in many cases, so that it is doubtful 
if the state would have finally remained in the Union, had 
it not been for the firm restraining hand of the Federal 
military authorities. 1 After all, it is practically impossible 
to reach absolute certainty in this matter, and it will always 
remain a mooted point, and largely a subject for con- 

The half-hearted Union men, if we may call them such, 
as well as those heartily sympathizing with the South, con- 
sistently fought all the measures necessary for carrying the 
war to a successful termination, such as drafting, negro 
emancipation and enlistments, martial law, and military 
supervision of elections and other distinctly state functions. 

On November 6, 1861, the Union party succeeded in 

1 The Southern sympathizers claimed this in 1864. See Debates 
ii, 825 (references merely to " Debates " and " Proceedings " refer 
to those of the " State Convention of 1864 "). 

355] The Maryland Constitution of 1864. 9 

electing Augustus W. Bradford governor by over 31,000 
majority, 15,000 more votes than the highest candidate at 
the presidential election of the preceding year. 2 A large 
majority of the Legislature also was loyal. 

By this election Maryland was definitely lost to the 
cause of secession, and hereafter the main struggle was over 
the support of the National Government in the war meas- 
ures mentioned above. The most important of these, 
which dealt with the original cause of the differences be- 
tween the North and the South, was slavery, and around 
the question of emancipation soon centred the political ac- 
tivity of the next three years. President Lincoln precipi- 
tated the struggle in the spring of 1862, when he declared 
his policy of compensated emancipation, especially for 
the border states that had remained in the Union, and ulti- 
mately leading to national abolition of slavery. He first 
suggested this to some of the leading politicians, and 
afterwards officially recommended it to Congress, but de- 
sired the action of the above states to be voluntary.* 

Before going further in tracing this movement, we must 
take a hasty look at the changed condition of slavery in 
Maryland at this time. While the interest of the people 
was directed towards the stirring national affairs of political 
and military moment, a domestic revolution had taken 
place, not so much as dreamed of a few years before. 4 

" Scarcely a year had elapsed after the war commenced 
before the institution of slavery in Maryland became utterly 
demoralized. The master lost all control over his slave. 
The relation between master and slave existed only as a 
feature in the legislation of the past. There was no power 
to compel obedience or submission on the part of the slave, 

2 Scharf, " Hist, of Md.," iii, 460, states that many illegal votes 
were cast by Union soldiers stationed in Maryland and other in- 
terested persons. 

8 Nicolay and Hay, " Life of Lincoln," viii, 450-1. 

4 " American," Oct. 10, 1863 (Baltimore papers referred to, unless 
otherwise stated). 

10 The Maryland Constitution of 1864. [356 

and there was no standard which could be appealed to as 
fixing the value of the slave as property. Man-land was 
neither a slave nor a free state." '' 

Among the many reasons for this state of affairs may 
be mentioned, first of all, the fact that the radical wing of 
the Republican party, which now largely favored emanci- 
pation, had almost complete control of the National Gov- 
ernment, and practical control of the Maryland state gov- 
ernment as well, through the presence of the armed mili- 
tary and the provost-marshals. Also, by the state of semi- 
anarchy which always accompanies a w r ar waged near by, 
the social and industrial orders were almost paralyzed in 
Maryland, and legal remedies were more slow and uncer- 
tain. Again, the Federal forces regularly seized slaves, 
either for enlistment or for bodily labor in connection with 
the forts or supply departments, and they refused to return 
them (or even runaway slaves), to their masters. These 
facts are more than enough to explain the demoralized con- 
dition of slavery. 

Although useless for all practical purposes, this institu- 
tion was by no means dead politically, as following events 
will show. The people of Man-land were born and bred 
during its life and strongest influence, so that it w r as hard 
for many of them to realize the fact of its practical annihila- 
tion. In addition, they desired, if slavery must go, to pro- 
cure some return for their lost property. 

In an aggregate population of 687,000 in 1860, there 
were 83,942 free negroes and 87,189 slaves. The number 
of slave-owners was estimated at about 16,000, though 
many of these owned only one or two slaves.' A state 
with so nearly a numerical equality between free negroes 
and slaves, offered an excellent opportunity for pushing a 
policy of emancipation, and this opportunity the emancipa- 
tion advocates were not slow to seize. 

'Inaugural address of Governor Swann. Jan. II, 1865. 
e " Debates," i, 616. 

357] The Maryland Constitution of 1864. 11 

President Lincoln, on March 6, 1862, sent in his mes- 
sage urging a policy of compensated emancipation, and 
it was approved by resolution of Congress on April io. T 
He had an interview on this subject with the delegations 
from the border states on March 10, 1862, at which two 
of the Maryland representatives were present Cornelius 
L. L. Leary and John W. Crisfield but they gave him 
little encouragement. A second interview, four months 
later, was no more successful, the border states practically 
declining to entertain his proposals. 

" Little could be expected from the Maryland Union 
representatives at that time in behalf of the President's 
policy. They had been elected on June 13, 1861, by the 
party organization which still reflected the conservatism 
existing before the war, and whose single bond of party 
affiliation was opposition to secession and disunion a 
condition of political sentiment at that time common to all 
the border slave states and which was formulated by the 
Crittenden resolution." ' 

The bill for the abolition of slavery in the District of 
Columbia which finally, after much delay, passed Con- 
gress in the month of April, 1862, served to show the peo- 
ple of Maryland that the cause of emancipation was ad- 
vancing, and that they must at once prepare to deal with it. 
The Legislature of 1862, still showing the old suspicious 
attitude of the slave-owners, who were always on the look- 
out for anti-slavery measures, had already passed resolu- 
tions of loyalty to the Union, but had also protested against 
any agitation of the subject of emancipation. Hon. 
Francis Thomas, of Maryland, on January 12, 1863," intro- 
duced in Congress a resolution looking toward compen- 
sated emancipation in Maryland, and a few days later a 

7 House Journal, 37th Congress, 2d Session, p. 528. Senate 
Journal, p. 382. 

8 Nicolay and Hay, " Life of Lincoln " (from which we have 
largely drawn for this period), viii, 452-4. 

* House Journal, 37th Congress, 3rd Session, p. 186. 

13 The Maryland Constitution of 1864. [358 

bill was actually introduced by Mr. Bingham, of Ohio, for 
this purpose, which, after being- referred to a committee, 
was reported on February 25 10 and appropriated ten mil- 
lion dollars to carry the plan into effect. Mr. Crisfield 
objected, and for this and minor reasons the bill finally 
passed out of sight and was not brought forward again. 11 

But the question was not thus summarily hushed in 
Maryland. Emancipation now came to the fore, and re- 
mained there till the battle was fought to a finish. 

" In this emergency the duty of prompt action became 
imperative, and even the advocates of gradual emancipa- 
tion upon the President's recommendation found them- 
selves powerless in the midst of the claims of a higher 
state necessity, which demanded the prompt abatement of 
the evil. . . . While compensation was beyond the ability 
of the state, the duty was not the less incumbent to abate 
a nuisance which obstructed all the avenues of agricul- 
tural, manufacturing and commercial development." ' 

The more radical wing of the Union party u took up the 
question, and the fall election of 1863 was fought on this 
line. The American, in an editorial in the issue of Oc- 
tober 7, 1863, said: "As we predicted at the outset, the 
question has forced its way, has compelled attention, until 
at last it is the one thing dwelt upon by the first intellects 
in the state, by all who are candidates for place and posi- 
tion at the hands of the people." 

As slavery was recognized and protected by the exist- 
ing state Constitution (adopted in 1851) which said: "The 
Legislature shall not pass any law abolishing the relation 
of master or slave, as it now exists in this state " (Art. Ill, 
Sec. 43), a constitutional amendment was necessary to 

10 House Journal, 37th Congress, 3rd Session, 485. 

11 Nicolay and Hay, viii, pp. 456-7. 

"Gov. Swann's inaugural address, Jan. n. 1865. 
u Not known in Maryland as the Republican party during the 

359] The Maryland Constitution of 1864. 13 

But the Constitution had been formed and passed in an 
irregular and unsatisfactory manner, and was unpopular 
with a large number of the people, who demanded z. more 
just and more modern instrument. In fact, there had 
already been several movements for a Constitutional Con- 
vention, notably in 1858, when the Legislature ordered a 
vote on the question of a new Constitution, and made 
provision for a convention in case the people were favor- 
able, but there was a majority of over 8000 against it. 14 
Later, the Legislature of 1862 made a strong move in this 
direction. During the special session in the fall of 1861 
permission was, on December n, granted the Senate 
" Committee on Judicial Procedure " to report a bill for 
taking the sense of the people on calling a Constitutional 
Convention. The bill was reported during the regular ses- 
sion on January 20, 1862, and passed its third reading on 
February 14. The House of Delegates amended the 
Senate bill, and passed it during the night of the last day 
of the session (March 10), seemingly returning it too late for 
any further action by the Senate, as we have no subsequent 
record of the bill." 

The radical wing of the Union party in the state had 
been sharp enough to see the advantage of combining the 
emancipation sentiment with this dissatisfaction with the 
State Constitution, and instead of favoring an amendment, 
declared for a new Constitution in a convention in Balti- 
more on May 28, 1862, composed of delegates from Union 
ward-meetings. 10 They carried this move further in the 
summer of 1863, when they formed a new political party, 
known as the " Unconditional Union," which embodied the 
idea among its principles. 

14 Governor's Message, House Documents, 1864. Schmeckebier, 
" Know Nothing Party in Maryland," 94-6. (J. H. U. Studies, 
series xvii, 238-40.) 

15 Senate Journal (1861-2), 20, 127, 250. House Journal, 474, 
894-7, Deb. i, 581. 

19 Nicolay and Hay, viii, 455. 

14 The Maryland Constitution of 1864. [360 

The fall campaign of 1863 was the first general state 
election since 1861, and hence the first opportunity for 
radicalism to try its strength since the general Union 
Party victory when Governor Bradford was elected. A 
Comptroller of the Treasury, a Commissioner of the Land 
Office, five members of Congress, a State Legislature and 
local officials were to be elected. A mass-meeting was 
held under the auspices of the Union League at the Mary- 
land Institute, Baltimore, on April 20, 1863, which de- 
clared for emancipation -throughout those parts of the 
country in rebellion, according to President Lincoln's 
proclamation of September 22, 1862, and for compensated 
emancipation in Maryland, according to the President's 
recommendation of March 6, 1862. Governor Bradford 
presided at this meeting and also addressed it, as did Hon. 
Montgomery Blair, ex-Governor Hicks, and other prom- 
inent Union men. 

The State Central Committee, appointed by the Union 
State Convention of May 23, 1861, still controlled the 
party machinery, and was far too conservative to carry out 
the radical program. At this juncture the Union Leagues 
of the state stepped in, and in a convention held in Balti- 
more on June 16, 1863, over which Henry Stockbridge 
presided, boldly took their stand as " supporting the whole 
policy of the Government in suppressing the Rebellion." 
This of course included emancipation. The convention 
adjourned over till June 23, for which date the State Cen- 
tral Committee had called the regular State Convention of 
the Union party. 

Both conventions met in Baltimore on the same day 
and in the same building the " Temperance Temple " on 
North Gay Street. 

The Central Committee Convention, refusing the Union 
League overtures looking toward a subsequent " fusion " 
convention, nominated S. S. Maffitt, of Cecil County, for 
Comptroller, and William L. W. Seabrook, of Frederick 
County, for Commissioner of the Land Office. The 

361] The Maryland Constitution of 1864. 15 

Union League Convention nominated Henry H. Golds- 
borough, of Talbot County, for Comptroller, and also nom- 
inated Mr. Seabrook for Commissioner of the Land Office. 

The division was complete, and these two factions, both 
loyal to the Union, had now for the present become separate 
parties, and could only fight out their principles at the 
polls. The conservatives, hereafter known as " Conditional 
Union," while protesting their loyalty and desire that the 
war be carried to a successful close, opposed President 
Lincoln on account of his " unconstitutional acts " 1T in his 
aggressive war measures, and also opposed the radical pro- 
gram of emancipation and the agitation of the slavery ques- 
tion, preferring a policy of compromise and delay. On the 
other hand, they announced themselves as favoring the 
submission to the people of the question as to the desira- 
bility of calling a constitutional convention. The State 
Central Committee on September n issued an address to 
the people of the state embodying these principles. It was 
signed by Thomas Swann (chairman), John P. Kennedy, 
Columbus O'Donnell, John B. Seidenstricker, Thomas C. 
James, George Merryman, Augustus M. Price, William H. 
Stewart, and John V. L. Findlay. 

The radicals, hereafter known as " Unconditional 
Union " men, came out for an aggressive policy, and forced 
their candidates to the front as standing on an uncompro- 
mising platform advocating a constitutional convention, 
the extinction of slavery, and complete and absolute sup- 
port of the National administration. To carry this out 
it was absolutely necessary that they should secure a ma- 
jority of the Legislature, so that they could push through 
a bill for submitting to the people a call for the convention. 
Their address was issued on September 16, and was signed 
by William B. Hill, Henry W. Hoffman, Horace Abbott, 
James E. Dwindle, William H. Shipley, S. F. Streeter, 
John A. Needles, Robert Tyson, Milton Whitney and Wil- 

" Frederick " Examiner/' November 4, 1863. 

1G The Maryland Constitution of 1864. [362 

Ham H. Baltzell. The Unconditional Union State Cen- 
tral Committee, authorized by the Union League Conven- 
tion of June 23, organized on September 29 and issued a 
second address urging upon the people the principles ad- 
vocated in that of September 15." 

A vigorous campaign was organized by both parties, 
and active work immediately began. 

The Democratic party was almost dead and practically 
without organization, and although candidates were nom- 
inated in the lower counties, and in the First and Fifth 
Congressional Districts, it abandoned the field in Balti- 
more and the northern and western counties to the two 
Union parties. 

The campaign was most actively carried on throughout 
the state, the candidates and party leaders making numer- 
ous speeches, and usually urging that the result of the elec- 
tion would show the sentiment of the state on the dominant 
subjects of emancipation and a new Constitution. The 
newspapers supporting the Unconditional Union candi- 
dates also adopted the same tone, while those supporting 
the opposite side were, as a rule, very guarded in their 
statements, often entirely omitting all controversy, as they 
evidently feared repression by the military authorities. 
The most potent organ on the radical side was the Balti- 
more American, which printed a series of strong anti- 
slavery editorials, 19 and on October 12, 1863, stated its posi- 
tion by saying: " The American is not the organ of any 
party does not desire to be the organ of any party and 
never has had any aspirations for party leadership. . . . 
Our idea is to get rid of Slavery in the state of Maryland 
at the earliest practicable moment that such a result can be 
obtained." On November 2 it further urged the people 
to carry the state for emancipation as the " debt of gratitude 
which Maryland owes the [National] Government." 

Nelson. " History of Baltimore," 155. 
See issues of October 7, 10, 12, 20, 21, 29. 

363] The Maryland Constitution of 1864. 17 

On the evening of October 28 the Unconditional Union- 
ists closed the campaign with a large and enthusiastic mass- 
meeting in Monument Square, the largest held in Baltimore 
for years. John Lee Chapman, Mayor of Baltimore, pre- 
sided, and addresses were made by Henry Winter Davis, 
Salmon P. Chase, General James A. Garfield, Brigadier- 
General E. B. Tyler, and others of local or national reputa- 
tion. Strong resolutions were passed favoring the prose- 
cution of the war, " supporting the whole policy of the 
[National] administration," and also saying " we are in 
favor of emancipation in Maryland by a Constitutional 
Convention," and that " the convention ought to meet 
and conclude its labors that the Constitution may be rati- 
fied at least by the next Presidential election." An addi- 
tional clause declared that " traitors who do not acknowl- 
edge the government whose authority protects the ballot- 
box have no right to meddle with the elections." This 
was perhaps intended as a judicious hint of what followed 
during the next few days. 

In spite of the great weight and importance of the ques- 
tions involved, it has been stated by those in a position to 
know, that there was much less strife and animosity of 
party feeling than might have been expected, which can be 
explained by the fact that the larger part of the contestants 
were united in their loyalty to the Union. In addition, 
affairs were further complicated and party lines practically 
broken by a dissatisfied independent movement in Balti- 
more City, which nominated several candidates of its own 
for local offices and the Legislature. This did not obscure 
the dominant questions, however, which were to be de- 
decided on the election of a Comptroller. 

Suddenly a different phase was put on the entire situation 
by the interference of an exterior force the military 
acting to some extent at least on the authority of the Na- 
tional Government. 

On October 26, Thomas Swann, chairman of the (Con- 
ditional) Union State Central Committee, had sent the fol- 
lowing letter to President Lincoln: 

18 The Maryland Constitution of 1864. [364 


BALTIMORE, October 26, 1863. 

Sir: A suspicion having taken possession of the minds of many 
loyal Union voters of the state of Maryland, that the election 
about to take place on the 4th of November, will be attended with 
undue interference on the part of persons claiming to represent 
the wishes of the Government, I am induced, by what I know to 
be the desire of a large number of our people, and in furtherance 
of applications daily made to me, to ask most respectfully, that you 
would place me, as Chairman of the Union State Central Com- 
mittee, in possession of your views upon this subject, in order that 
they may be communicated to loyal voters throughout this state. 

I will beg you to believe, Mr. President, that it is with no doubt 
or distrust on my part, as to what will be your response to this 
letter, that I ask this favor at your hands; but simply to satisfy 
a large class of persons who believe that an expression of opinion 
on your part, would not be without its benefit to the people of the 
state, in promoting what we all desire, a fair expression of the 
public voice. 

I am, with great respect, your obedient servant, 

Chairman of the Union State Central Committee. 

The President replied on the next day as follows: 


October 27, 1863. 

Dear Sir: Your letter, a copy of which is on the other half of 
this sheet, is received. I trust there is no just ground for the 
suspicion you mention, and I am somewhat mortified that there 
could be a doubt of my views upon this point of your inquiry. 
I wish all loyal, qualified voters in Maryland and elsewhere, to 
have the undisturbed privilege of voting at elections; and neither 
my authority nor my name can be properly used to the contrary. 

Your obedient servant, 


Major-General Robert C. Schenck had been placed in 
command of the Middle Department, Eighth Army Corps, 
on December 17, 1862, with headquarters in Baltimore, 
and had been most active in his support of the National 
Government, as well as in using severe and stringent 
means to suppress all traces of disloyalty. This, of course, 

365] The Maryland Constitution of 1864. 19 

had aroused bitter opposition in the Southern sympathizers 
and also the more conservative Union people of the state, 
who were stated above as opposing the policy of the ad- 
ministration. On the other hand, the outspoken Unionists 
had, in many cases, enthusiastically supported General 
Schenck. A good instance of this is found in the fact that, 
when in July, 1863, he levied damages on known Southern 
sympathizers in Harford county to reimburse their Union 
neighbors for wanton destruction of their property by un- 
known persons, 20 the Second Branch of the City Council 
on August 10 passed unanimous resolutions thanking him 
for this severe measure, and endorsing his administration. 11 
Now, on October 27, 1863, General Schenck issued his 
famous " General Order No. 53," in which he practically 
took military control of the ballot-box in the coming elec- 
tion. After stating that " It is known that there are many 
evil-disposed persons now at large in the state of Maryland 
who have been engaged in rebellion against the lawful 
Government, or have given aid and comfort or encourage- 
ment to others so engaged, or who do not recognize their 
allegiance to the United States, and who may avail them- 
selves of the indulgence of the authority which tolerates 
their presence to embarrass the approaching election, or 
through it to foist enemies of the United States into power," 
it was ordered, first, that provost-marshals and other mili- 
tary officers " arrest all such persons found at, or hanging 
about, or approaching any poll or place of election on No- 
vember 4, 1863;" second, that these officers should require 
of voters who were challenged on the ground of disloyalty 
the following oath : " I do solemnly swear that I will sup- 
port, protect and defend the Constitution and Government 
of the United States against all enemies, whether domestic 
or foreign; that I hereby pledge my allegiance, faith and 
loyalty to the same, any ordinance, resolution, or law of 
any State Convention or State Legislature to the contrary 

20 " Sun," July 30, August 8. a " Sun," August n. 

20 The Maryland Constitution of 1864. [366 

notwithstanding; that I will at all times yield a hearty and 
willing obedience to the said Constitution and Government, 
and will not, either directly or indirectly, do any act in 
hostility to the same, either by taking up arms against 
them, or aiding, abetting, or countenancing those in arms 
against them; that, without permission from the lawful au- 
thority, I will have no communication, direct or indirect, 
with the states in insurrection against the United States, 
or with either of them, or with any person or persons within 
said insurrectionary states; and that I will in all things 
deport myself as a good and loyal citizen of the United 
States. This I do in good faith, with full determination, 
pledge, and purpose to keep this, my sworn obligation, and 
without any mental reservation or evasion whatsoever." 
Thirdly, it was ordered that judges of election refusing to 
carry out this order were to be reported to headquarters. 

As General Schenck and his officers had openly advo- 
cated the election of the Unconditional Union ticket, this 
order was, aside from all expediency, most unfair to the 
loyal citizens in the Conditional Union and Demo- 
cratic parties. It was naturally greeted with a storm of 
protests by them, and execrated from one end of the state 
to the other. The radical Union men, aside from political 
influences, generally endorsed it, urging that the import- 
ance of the full support of the Union by Maryland was 
far more important than any matters of local liberty and 

Governor Bradford, a man of undoubted loyalty, who 
had courageously upheld the Union cause without com- 
promise, and was in personal and friendly communication 
with the military authorities, had received no intimation 
in regard to the order.* 1 This was rather bad treatment, 
for the chief magistrate of the state certainly deserved at 
least the courtesy of a proper notice that the state laws 
were to be superseded by military direction, especially since 

11 Governor's Message, Senate and House Documents, 1864. 

367] The Maryland Constitution of 1864. 21 

he had openly espoused the cause of a new Constitution 
and emancipation early in the fall campaign. Entirely in 
the dark as to the course of events, 23 Governor Bradford 
unknowingly followed the example of Thomas Swann, and 
on October 31 wrote President Lincoln, stating that rumors 
were current to the effect that the military forces were to 
be present at the polls, and protesting against the same, 
also saying: " As there is no reason, in my opinion, to 
apprehend any riotous or violent proceedings at this elec- 
tion, the inference is unavoidable that these detachments, 
if sent, are expected to exert some control or influence in 
that election." The letter protested against any " restric- 
tions or qualifications on the right of suffrage," and added 
that, judging from the President's previous course, he 
thought any orders issued must be without his knowledge. 
On November 2 Mr. Lincoln wrote in answer to this 
letter, that he had conferred with General Schenck, who 
had assured him that it was almost certain that violence 
would be used at some of the voting places on election 
day unless prevented by his provost guards. Further, he 
justified his position with reference to his policy in the past 
on the ground that the laws of Maryland required no test 
of loyalty, and added that General Schenck's order " as- 
sumes the right of voting to all loyal men, and whether a 
man is loyal, allows that man to fix by his own oath. . . . 
I revoke the first of the three propositions in General 
Schenck's General Order No. 53," not that it is wrong in 
principle, but because the military being, of necessity, ex- 
clusive judges as to who shall be arrested, the provision is 
liable to abuse. For the revoked part I substitute the 
following: That all provost marshals and other military 
officers do prevent all disturbance and violence at or about 
the polls, whether offered by such persons as above de- 
scribed, or by any other person or persons whatsoever. 

28 It appears that General Schenck's order was not at once gen- 
erally published. 24 See page 20. 

22 The Maryland Constitution of 1864. [368 

The other two propositions of the order I allow to stand. 
General Schenck is fully determined, and has my strict 
orders besides, that all loyal men may vote, and vote for 
whom they please." 

Thus rebuffed, and recognizing the futility of any further 
attempt to persuade the national and military authorities 
to recede from their position, Governor Bradford imme- 
diately issued (November 2) a lengthy proclamation " To the 
Citizens of the State, and More Especially the Judges of 
Election,!' a large part of which had been prepared before- 
hand. In this document he protested strongly against the 
military order and its provisions as most obnoxious and 
entirely without justification, " more especially offensive and 
dangerous in view of the known fact that two at least of 
the five provost-marshals of the state are themselves candi- 
dates for important offices, and sundry of their deputies 
for others." The attention of the Judges of Election was 
called to the fact that "they are on the day of election 
clothed with all the authority of conservators of the peace, 
and may summon to their aid any of the executive officers 
of the county, and the whole power of the county itself, to 
preserve order at the polls, and secure the constitutional 
rights of voters." They were also reminded of their oath 
to observe the laws of the state, that the elections be so 
conducted as to permit the qualified voters to fully cast 
their ballots, and that there was absolute legal prohibition 
of military at or near the polls. The original proclamation 
closed with the two following paragraphs: 

" Whatsoever power the state possesses, shall be exerted 
to protect them * for anything done in the proper execu- 
tion of its laws. 

" Since writing the above I have seen a copy of the 
President's letter to the chairman of the Union State Cen- 
tral Committee, bearing the same date with the order, and 
evidently showing that the order was unknown to him, 

n i. e. Judges of election. 

369] The Maryland Constitution of 1864. 23 

that it would not have been approved by him if he had 
known it [beforehand?] and that it is, therefore, all the 
more reprehensible." 

A postscript was added containing the modification by 
the President of General Order No. 53, as has been already 

Military orders were immediately sent to the Eastern 
Shore, against which it was claimed the General Order 
had been especially directed (as martial law had never been 
declared in this part of the state) ordering that the circula- 
tion of the Proclamation be suppressed. An embargo was 
laid on all steamers trading with that part of the state, and the 
newspapers were forbidden to publish it. 20 However, Gover- 
nor Bradford issued it in pamphlet form on the same day, 21 
and it was finally permitted to appear in the Baltimore papers 
on the morning of the election (November 4). This action 
on the part of the military authorities is explained by Gen- 
eral Schenck in a reply published by him on November 3, 
in which he stated that he desired that there should go out 
with the Governor's proclamation the letter from President 
Lincoln to Governor Bradford on the subject of the action 
of the military. He added that the simple purpose of the 
order was " to prevent traitorous persons from controlling 
in any degree by their votes, or taking part in the coming 
election." Further, in order to secure peace and good 
order at the polls, the officers entrusted with this duty were 
in every case furnished with written or printed instructions 
containing the following: "The officers and men are cau- 
tioned not to commit or permit any unlawful violence. 
They must not enter into political discussions, and are to 
remember that while protecting the polls from rebel sym- 
pathizers, they are conservators of the peace, and are there 
to support the judges of election." 

This public controversy ended here, but the results of 

28 Governor's Message, Senate and House Documents, 1864. 
" " Sun," November 4. 

24 The Maryland Constitution of 1864. [370 

conflicting authority and such an uncertain and complicated 
state of affairs were as might easily have been foreseen. 

The election took place, as stated above, on Wednesday, 
November 4, 1863, and resulted in an overwhelming victory 
for the Union ticket. 

Goldsborough, for Comptroller, received 36,360 votes, 
and Maffitt, 15,984, an Unconditional Union majority of 
nearly 20,000. In Baltimore City, the vote was 10,545 for 
Goldsborough, and 367 for Maffitt. A majority of the 
state Legislature also was in favor of the Constitutionl 
Convention and emancipation. John A. J. Creswell, Ed- 
win H. Webster, Henry Winter Davis, and Francis 
Thomas, the Unconditional Union candidates in the first 
four districts respectively, were elected to Congress, Web- 
ster and Davis w r ith practically no opposition, but the Fifth 
District went Democratic, Benjamin G. Harris being suc- 
cessful against his Conditional and Unconditional Union 
opponents. Goldsborough's majority was about ten thou- 
sand less than that of Governor Bradford in 1861, but the 
Democratic votes cannot be compared, as that party had 
no candidates for state officers in 1863. The entire Union 
vote (of both parties) was practically the same in 1863 as in 
1861, although the total vote was only about half that of 
the Presidential election of 1860. Part of this decrease 
was of course caused by lack of Democratic nominations 
and also the numbers of secession sympathizers who had 
gone South to enter the Confederate service; but fear of 
the military at the polls, or the intimidation practiced by it 
(of which there is absolute proof) were the greatest causes, 
the number not voting at this election for these latter rea- 
sons being estimated at about one-third of the total vote 
in many districts of the state. 28 Allowing absolute fairness 
at the polls, and even this entire amount throughout the 
state as going solidly for Maffitt, Goldsborough would still 
likely have won by a good round majority, so that the mili- 

28 See evidence in contested election cases, House Documents, 
1864; also contemporary newspapers. 

371] The Maryland Constitution of 1864. 25 

tary force used did not materially affect the final result as 
much as might have been expected, except in the First 
Congressional District (Eastern Shore), where it is perhaps 
doubtful if Mr. Creswell could have defeated Mr. J. W. 
Crisfield, his opponent. The complexion of the Legisla- 
ture under these different conditions is a mere matter of 
guess work, for although it is nearly certain that the House 
of Delegates would have still been favorable to the call of 
a convention, yet the Senate remains an entirely uncertain 
quantity. It is hardly necessary to state that the above 
speculations refer only to the action in this election of the 
nominally loyal voters, large numbers of whom were op- 
posed to the Unconditional Union platform. As said at the 
beginning, it is impossible accurately to estimate the sen- 
timent at this time of the total population of the state. 

In Baltimore City, the day of the election was very quiet. 
The saloons were all closed, and the military at the polls, 
under the immediate supervision of General E. B. Tyler, 
is said to have neither intimidated nor attempted to ob- 
struct those who offered to vote." The American of Novem- 
ber 5 says: " Tickets of all kinds were in abundance at the 
polls, and all loyal men voted their sentiments fredy, so far 
as the choice of candidates was concerned. . . . Mr. 
Maffitt, the representative of the slave-holding interest, was 
scarcely regarded as a candidate in the contest." The city 
police, as well as the soldiers on duty at the polls, were 
under strict orders to refrain from electioneering, and to 
preserve the peace in every way. 

As stated above," the main force of General Schenck's 
order seemed to be directed against the Eastern Shore. A 
force of infantry or cavalry was sent to each of the eight 
counties on that side of the bay, and detachments under 
command of subaltern officers were stationed at the various 
polls. 81 The following proclamation'" was issued by Lieu- 

20 See daily papers. M Page 28. 

31 Report Senate Committee on Elections, Doc. " D ", 1864. 
3i " Documents Accompanying Governor's Message," House and 
Senate Doc,, 1864. 

26 The Maryland Constitution of 1864. [372 

tenant-Colonel Tevis, commanding the 3rd Maryland 
Cavalry, and circulated in Kent and Queen Anne's 


CHESTER-TOWN, November 2, 1863. 

Whereas,, the President of the United States, in reply to a letter 
addressed to him by Hon. Thomas Swann, of Baltimore City, 
has stated that all loyal qualified voters should have a right to 
vote, it therefore becomes every truly loyal citizen to avail himself 
of the present opportunity offered to place himself honorably upon 
the record or poll books at the approaching election, by giving a 
full and ardent support to the whole Government ticket, upon the 
platform adopted by the Union League Convention. None other 
is recognized by the Federal authorities as loyal or worthy of the 
support of any one who desires the peace and restoration of this 


Lt.-Colonel Commanding. 

Colonel Tevis was afterwards put under arrest by order 
of General Schenck, on the charge of acting in excess of 
orders, but was soon released, presumably without trial. 83 

This so-called " Government Ticket " was in several, if 
not all, of the counties in the First Congressional District, 
printed on yellow paper, and in some instances known 
Southern sympathizers were allowed to vote if they voted 
this ticket, while known Unionists were excluded for refus- 
ing to do so." There seems to have been no regularity of 
procedure by the military, in some districts only those 
tickets being thrown out which contained the name of Mr. 
Crisfield for Congress, while in other places the procedure 
was changed to support certain candidates for local offices. 
For instance, in several districts of Somerset County, the 
provost-marshal in charge, who was a candidate on the rad- 
ical ticket for sheriff of the county, announced that no one 
who would vote for him should be molested. The Demo- 
crats shrewdly promised to put the man on their ticket, 

" American," November 6 and 10. 
"Senate and House Documents, 1864. 

373] The Maryland Constitution of 1864. 27 

and were allowed to vote without any difficulty, but 
when the votes were counted it was found that this prac- 
tical politician was sadly tricked, as nearly all the Demo- 
cratic ballots showed no trace of his name. At Princess 
Anne, Somerset County, the judges of election were ar- 
rested, and the polls closed when only one citizen had 
voted. General Lockwood soon after released the pris- 
oners, but the citizens of the whole district were deprived of 
voting. Several Union candidates in Kent County were 
arrested by order of Captain John Frazier, Jr., himself a 
candidate for a county office. They were carried to Balti- 
more, but were immediately released by Colonel Donn 
Piatt, General Schenck's chief-of-staff, who not only 
showed surprise, but disavowed responsibility for the ac- 
tion. Captain Frazier, as in the case of Colonel Tevis, 
was later arrested for this by General Schenck, but we 
could find no record of the final outcome of the matter, 
as in all probability it also was soon passed over. 

Numerous other instances might be mentioned, as they 
were well brought out in contested election cases," but 
perhaps enough has been given to show the general char- 
acter of the outrages. There were several isolated cases 
in other parts of the state, as in Frederick and Prince 
George's ** counties, but nothing on so large a scale and 
with such bold effrontery as in the First Congressional 

As a result of the conflict of authority between Gover- 
nor Bradford and General Schenck, there was no regu- 
larity in the requirement of the prescribed oath. In some 
parts of the state every voter was required to take it, and 
in others it was observed very little, if at all. In a num- 
ber of places on the Eastern Shore those voting the " yel- 
low " ticket were not even challenged, while the remainder 
were subjected to the oath. It should be noted that there 

85 See Senate and House Documents, 1864. 

86 Debates, iii, 1735-6. 

28 The Maryland Constitution of 1864. [374 

is no record of any violence or breach of the peace on the 
part of the citizens of the state. This was no doubt partly 
the result of intimidation, but also showed the admirable 
power of self-restraint and the law-abiding character of the 
people. Although, as stated above, the general result 
throughout the state was not materially affected by this 
use of armed force, yet the great question is as to who 
was originally responsible for the move, and to what extent 
it was justified. After a careful weighing of the evidence, 
our opinion is that President Lincoln and General Schenck 
used the military merely to keep disloyal citizens from 
voting, a proceeding which may partly be justified as a 
legitimate political move to strengthen the hands of the 
government in time of war. The policy of the administra- 
tion in regard to the other border states tends to confirm 
this view. 87 

The Baltimore American repeated the strong argument 
that had been urged by President Lincoln in support of 
this measure, by saying in an editorial on November 23, 
1863: "The very fact that the laws of the state provided 
no remedy for its protection against the arts of treason 
as lately displayed at the polls, constituted an imperative 
and all-sufficient reason why the general government 
should provide some remedy for so unexpected and grave 
a disability." 

The great mistake, and the one for which General 
Schenck deserves severe censure, if not positive condemna- 
tion, is found in the fact that he not only openly espoused 
the cause of the Unconditional Union party, but actually 
made political speeches at various meetings in different 
parts of the state, and urged the people to vote for Golds- 
borough and the other candidates on that ticket. He also 
allowed his officers to do the same.* 8 It would be hard to 

87 Nicolay and Hay, " Life of Lincoln," viii, 420, 427-8, 432-3, 
44i, etc. 

88 See "Sun," Aug. 17, Oct. 29; "American," Oct. 9, 15, 16, 19, 
23, 29. 

375] The Maryland Constitution of 1864. 29 

justify this on the ground of zeal for a good cause. No 
wonder "Colonel Tevis spoke of the Unconditional Union 
as the " Government " ticket in his very original proclama- 
tion at Chestertown. 

On the other hand, it must be said in General Schenck's 
defense, that he was hardly in any direct manner respon- 
sible for the outrages on the Eastern Shore, although he 
himself by his own actions practically laid the way open 
for the frauds of the unscrupulous local politicians and their 
supporters among the military. These in all probability 
formed a part of that band of " loyal citizens " who urged 
upon him the necessity of the military possession of the 
polls, as he stated in his proclamation of November 3, 
already mentioned. 88 

It is interesting to note that precisely the same order 
as " Number 53 " was issued by General Schenck to govern 
the election held in Delaware * on November 19, 1863. 
Far from protesting against this action, the Governor of 
the state officially endorsed it as follows:* 1 


DOVER, November 13, 1863. 

All civil officers and good citizens of this State are enjoined to 
obey the above military order, issued by the Commanding General 
of the Middle Department, and to give all needful aid for the 
proper enforcement of the same. 

Governor of Delaware. 

An attempt was made to induce Governor Bradford to 
refuse to give certificates of election in view of the un- 
doubted irregularities at the polls, but after seeking the 
advice of Hon. Reverdy Johnson the Governor declined 
to accede to this, alleging lack of power, and that his duties 
were merely ministerial in cases of this kind. 

89 Issued by Gen. Schenck in answer to the Governor's proclama- 
tion (see page 23). Further particulars on this subject in Gover- 
nor's message, 1864. 

40 Also in the jurisdiction of the Middle Department. 

41 " American," Nov. 17, 1863. 

30 The Maryland Constitution of 1864. [376 

The Legislature met at Annapolis on January 6, 1864, 
and soon after organized. John S. Sellman, of Anne 
Arundel was elected President of the Senate, and Thomas 
H. Kemp, of Caroline, Speaker of the House of Delegates. 
Governor Bradford's message was a long and able docu- 
ment. It contained, in addition to the usual discussion of 
the financial and other economic affairs of the state, an 
account of the controversy and difficulties at the previous 
election, with some condemnation of the military author- 
ities. Some suitable action on the part of the Legislature 
was suggested, so as to remedy military interference and 
prevent the use of marked ballots. The Governor also 
urged that a Convention Bill be speedily passed, and that 
a state system of education and numerous other important 
subjects should be carefully considered. 

In the House of Delegates, Mr. Stockbridge, of Balti- 
more City, on January 8 offered an order that so much 
of the Governor's message as related to a Constitutional 
Convention be referred to a select committee of five mem- 
bers, to be appointed by the Speaker, with authority to 
report by bill or otherwise. This was adopted, and on the 
1 2th the following committee was appointed: Messrs. 
Stockbridge (chairman) and Jones, of Cecil; Trail, of Fred- 
erick; Tyson, of Howard, and Frazier of Dorchester. 

This committee reported a bill on January 15, which pro- 
vided for a vote of the citizens of the state on the question 
of calling a Convention, and for the election of delegates 
on the same day. Mr. Tyson presented a minority report, 
around which the opposition at once assembled all its 
strength, as it was a measure of delay, providing for a 
special vote to decide for or against a Convention, with the 
addition that in case of a favorable result the Governor 
was to inform the Legislature of the fact at a special session 
or at the next regular one. This body then might provide 
for the election of delegates and the assembling of such 
a Convention. The contest lasted for some days and was 
quite bitter. The minority report, offered in the form of 

377] The Maryland Constitution of 1864. 31 

amendments to that of the majority, was defeated on Janu- 
ary 20 by a vote of 20 in favor to 50 opposed. After long 
and excited debate and continued negotiation with the 
Senate, the House finally, on February 3, passed the bill 
on its third reading by a vote of 43 to 17. 

The Senate early appointed a committee to confer with 
a like one from the House on the subject of the recom- 
mendation for a Convention contained in the Governor's 
message. A joint bill was reported on January 18, and 
considered by the Senate at various times, till finally the 
bill passed by the House was received. Numerous propo- 
sitions went back and forth between the two Houses till 
finally, at the suggestion of the House of Delegates, a con- 
ference committee was appointed on the morning of Feb- 
ruary 8. The differences were at once adjusted, and the 
committee report sent in that evening was immediately 
adopted by the Senate by the vote of 14 to 2. The House 
received the report on the next day, and adopted it, yeas 
43, nays 15, accepting the minor Senate provisions as to 
delegates, etc. 

The Convention Bill, as finally passed, contained the fol- 
lowing provisions : A vote was to be taken on the first Wed- 
nesday of April (6th) at the usual places and in the legal 
manner on the question of holding a Convention. At the 
same time, delegates to this Convention were to be elected, 
the qualifications being the same as those necessary for a 
seat in the House of Delegates, and the number the same 
as the total representation in both Houses of the Legisla- 
ture. In making returns of votes, the judges of election 
were to certify, under oath, whether there was military in- 
terference (except on demand of the civil authorities), in 
case of which the Governor was to order one or more new 
elections in the districts affected till that interference was 
discontinued. An oath of allegiance was required of all 
voters challenged on the ground of disloyalty. If the vote 
at the election was favorable to a Convention, the Governor 
was to issue a proclamation, calling it to meet in Annapolis 

32 The Maryland Constitution of 1864. [378 

on the last Wednesday of April (27th), 1864. Sixty-five 
delegates of the total of ninety-six were to be elected before 
the Convention assembled, and fifty members were neces- 
sary for a quorum. No delegate was to take his seat till 
he had taken before the Governor a certain stringent oath 
of loyalty. The compensation was five dollars a day and 
the mileage allowed members of the Legislature. A re- 
porter of debates and proceedings was to be provided by 
the Convention. The Constitution and form of govern- 
ment adopted was to be submitted to the legal and qualified 
voters of the state " at such time, in such manner, and sub- 
ject to such rules and regulations as said Convention may 
prescribe." In case of the adoption of the new Constitu- 
tion, the Governor was to issue a proclamation to that 
effect, and take the necessary steps to put it into operation. 
At the elections provided, the tickets were to be printed on 
white paper, other ballots not to be received, and heavy 
penalties were imposed on those judges of election or other 
civil officers who failed to do their prescribed duty. 

The campaign, in consequence of the above, began early. 
As the state had declared for emancipation by the previous 
fall election, the question now before the people was in 
regard to the form that this action wa r s to take. The Un- 
conditional Union party of the state boldly took its stand in 
favor of immediate emancipation without either compen- 
sation of slave-owners or " negro apprenticeship," and the 
election, in a great measure, favorably settled this as far 
as the people were concerned. 

The Conservative Union State Central Committee, at a 
meeting held in Baltimore on December 16, 1863, led by 
Thomas Swann and John P. Kennedy, had declared for 
immediate emancipation in the manner easiest for master 
and slave, since the people had willed it at the last election. 
This evidently in large measure accounts for the fact that 
in Baltimore City and several counties there were merely 
" Union " candidates, with no opposition. In others of 
the counties, however, there were three tickets " Uncon- 

379] The Maryland Constitution of 1864. 

ditional " and " Conservative " Union and Democratic. 
As in the previous election, the Democrats were not organ- 
ized throughout the state, their nominations for Conven- 
tion delegates being mainly in the lower counties. They 
had no candidates in Baltimore City, and those in Balti- 
more County were withdrawn before the election, leaving 
the Union nominees alone in the field. Wherever there 
were Democratic party organizations, they generally de- 
clared themselves opposed to emancipation on any terms. 43 
In fact, the declared tactics of those opposed to the Un- 
conditional Union program were to delay the call of a 
Convention till "all the people of the state could vote," 
claiming that they would then defeat the movement. Fail- 
ing that, they fougTTt for compensation for slaves and some 
system of negro apprenticeship. 

General Schenck had resigned his command soon after 
the election in the fall of 1863, in order to accept the seat in 
Congress to which he had been elected as a representative 
from Ohio. Brigadier-General Lockwood temporarily 
filled the position of commanding general till Major-Gen- 
eral Lew Wallace was appointed to the command of the 
Middle Department on March 17, 1864. 

General Wallace was, on the whole, more aggressive 
than General Schenck in the administration of his depart- 
ment, boldly taking his stand at the outset on the public 
declaration that a " rebel and a traitor had no political 
rights " whatever. However, on March 30, 1864, he wrote 
a letter to Governor Bradford, saying that he was anxious 
to frustrate the attempts of disloyal persons (some of them 
candidates) to vote on April 6, and asking if there were 
state laws and legislative action sufficient to prevent it. 
The Governor answered the next day, saying that the laws 
were entirely sufficient, if faithfully executed, as he had 
every reason to hope they would be, to exclude disloyal 
voters from the polls. Therefore General Wallace issued 

42 Also see p. 63. 

34 The Maryland Constitution of 1864. [380 

no general military orders like those of General Schenck, 
though he compelled Mr. E. G. Kilbourn, a candidate in 
Anne Arundel County, to withdraw on account of his 
questionable position in 1861 at the outbreak of the war. 
But like his predecessor, General Wallace also made the 
mistake of publicly showing his sympathy in the election, 
saying at an Unconditional Union mass-meeting at the 
Maryland Institute in Baltimore on April I, 1864, that " so 
far as in him lay, the liberty-loving people of the good old 
state should have his assistance." 

The Unconditional Union policy was a second time 
overwhelmingly victorious on April 6, 1864. The vote on 
the Convention was 31,593 "for," to 19,524 "against," a 
favorable majority of 12,069, but yet about 8000 less than 
Goldsborough's majority in November, 1863, although the 
total vote was about the same. The northern and western 
counties gave large majorities for the Convention, while 
the southern districts went heavily against it. In Balti- 
more City the vote was 9102 favorable, with only 87 op- 
posed. 43 This shows that some sort of intimidation must 
have been practiced, 44 although the American stated 48 that 
" the election proceeded very quietly in the city, perfect 
order being observed without even the shadow of military 

It appears that soldiers were well distributed throughout 
the state, either near the polls or within striking distance, 
but the cases of direct interference were not nearly so num- 
erous, and were much more scattered than in the previous 
election, 4 * while there are even some records of fraud and 

u It was claimed that the total vote was only one-third the usual 
number hitherto cast. Debates i, 639. 

14 See Steiner's " Citizenship and Suffrage in Maryland," p. 42. 

41 Issue of April 7. It also urged that the small vote in the city 
was due to lack of organization, no opposition, and to no canvass- 
ing of candidates who were seeking office. See also " Sun," 
Nov. 7. 

"Sun," April 7; Annapolis "Republican" (quoted in "Ameri- 
can," April n); Frederick "Examiner," April 13; Debates i, 

381] The Maryland Constitution of 1864. 35 

outrage on the part of Southern sympathizers. 47 On the 
whole, intimidation rather than violence was the cause of 
many citizens failing to vote. The judges of election re- 
ported only one case of military interference, that in the 
Rockville District of Montgomery County. A second 
election was held in this district according to the provisions 
of the Convention Bill, but as the total county vote had 
shown a sufficient Democratic majority to elect the three 
candidates on that ticket without any doubt, the final result 
was not much affected thereby. 

Out of the total of 96 delegates elected, there were 61 
Union men, nearly all pledged to unconditional emancipa- 
tion, and 35 Democrats, coming mainly from the southern 
part of the state. 

Governor Bradford, immediately upon the receipt of 
the official returns, issued a proclamation for the assem- 
bling of the Convention on Wednesday, April 27, 1864. 

The first act of the emancipation drama was now com- 
plete. As we have attempted to show, the movement was 
aided more by the general policy of armed restraint exer- 
cised upon the Southern sympathizers of the state by the 
National Government since the beginning of the war, than 
by any of the above-mentioned instances of military inter- 
ference. The radical Union program had been a success. 

582, 639-40; ii, 915-6; iii, 1726, 1763. Scharf, "History of Mary- 
land," iii, 579-80, gives an account of a most unfair system of chal- 
lenging and questioning, aimed against those under suspicion of be- 
ing Southern sympathizers. Also see Nelson, " History of Balti- 
more," 551-2. 

47 Frederick "Examiner," April 13; "Sun," April 7; "Ameri- 
can," April 7, 8. 


The Convention met at the State House in Annapolis on 
Wednesday, April 27, 1864. Of the ninety-six members 
elected, eighty were present on the first day. The re- 
maining sixteen, of whom fifteen were from the southern 
counties, appeared within the next week or two, with the 
exception of John F. Dent, of St. Mary's, who did not take 
his seat in the Convention till July 7, having been detained 
by illness in his family and other domestic causes. 

It would have been difficult to have found at that time 
a more representative body of Maryland men, nearly all of 
them native-born to the state, with two striking exceptions 
Henry Stockbridge, of Baltimore City, a native of Mas- 
sachusetts, and Oliver Miller, of Anne Arundel, a native of 
Connecticut who were prominent in the councils of the 
majority and minority respectively. The members from 
the southern part of the state in particular, were largely 
from the oldest and best known families of Maryland, and 
showed their conservatism in the fact that they formed the 
minority which not only opposed emancipation, but also 
nearly all other measures of reform introduced in the Con- 

Five of the members had been in the Convention of 
1850-1 which had formed the old Constitution Messrs. 
Chambers, Dennis, Dent, Lee and Ridgely and J. S. 
Berry, of Baltimore County, had been Speaker of the House 
of Delegates of the " Know Nothing " Legislature of 1858, 
and at this time held the office of Adjutant-General of the 
state. Messrs. Goldsborough, Smith of Carroll, Briscoe 
and Dennis had been members of the celebrated " Fred- 
erick Legislature " * of 1861, the two former as pronounced 

1 Suppressed by the military authorities. 

383] The Maryland Constitution of 1864. 37 

Unionists, and the others on the opposite side. Mr. Golds- 
borough was now State Comptroller, having been elected 
at the previous fall election as we have seen. Fourteen 
had been members of the Legislature of a few months 
before, of whom Messrs. Stirling and Stockbridge, both 
of Baltimore City, had been most active in preparing and 
advocating the Convention Bill in the Senate and House 
respectively, while Messrs. Clark, of Prince George's, and 
Dent, of St. Mary's, had been leaders of the opposition to 
it in the House of Delegates. 

In fact, it is seldom that one reads the records of events 
of the ten or fifteen preceding years without coming upon 
the names of many of those who were members of the Con- 
vention of 1864. 

Taken as delegations, those from Baltimore City, Alle- 
gany and Prince George's counties were perhaps the 
stronger, though several others were of nearly the same 
excellence. Many members who had been side by side in 
the ""Whig" and "Know Nothing" parties, or even the 
" Union Party " days of 1860, were now ranged on opposite 
sides, in this only showing the power of that mighty force 
which had sundered the former political ties of so many 
of the people of the state.' It should be said in addition, 
that nearly all the leaders were of the legal profession. 

From the outset, the majority took a stand as support- 
ing the Union and the National Government, especially 
in its policy as set forth in Mr. Lincoln's administration, and 
their measures were planned with the intention of keeping 
Maryland well in line with these ideas. These sixty-one 
Union members were from, the northern and western coun- 
ties, Baltimore City, and Talbot, Caroline and Worcester 
counties of the Eastern Shore, these latter three the south- 
ern slave counties in which the cause of the Convention had 

2 For instance, Messrs. Chambers and Stirling were formerly 
Whigs, Messrs. Smith (of Carroll) and Dennis had been candi- 
dates on the Bell and Everett electoral ticket in 1860. Mr. Golds- 
borough was formerly a Democrat. 

38 The Maryland Constitution of 1864. [384 

been successful, particularly in Worcester, where the ma- 
jority had been overwhelming. 8 These men, while firm and 
aggressive in their policy and expressing a sense of great 
responsibility, 4 can seldom be accused of unfairness, as 
they resorted to high-handed methods in very few instances. 
Although relying on their large numerical superiority, they 
sometimes kindly informed the minority at the beginning 
of a debate that the final outcome was already settled, a 
statement more forcible than pleasant, 8 yet, on the whole, 
more fault could be found with the provisions they carried 
through than with the manner of doing so. 

Very few regular caucuses were held by the majority 
members,* for they had been largely elected on and pledged 
to the same platform, so that they were a unit in many par- 
ticulars, though differing widely on certain subjects, as the 
judiciary, internal improvements, etc., which will be noted 
later. Owing to their decided numerical superiority, it 
was almost entirely unnecessary to use the " party whip " 
or any other political methods in order to secure a majority 
vote. Archibald Stirling, Jr., of Baltimore City, may be 
regarded as their leader. He frequently closed the debate 
with brilliant and forceful arguments among the best of 
those given in the Convention rather " cutting " at times, 
but always clear and logical. 7 He was ably seconded by 
Henry Stockbridge, of Baltimore City, another of the 
strongest men in the Convention; John E. Smith, of Car- 
roll; Wm. T. Purnell, of Worcester, and others scarcely 
less able. As stated above, the Baltimore City delegation 
was extremely influential as a whole, usually standing 

'890 "for," 135 "against." We can only repeat the difficulty 
of saying how much of this had been caused by force or intimida- 

4 Deb. i, 351-2. 

8 The minority often complained of their position in this respect. 
See Deb., i, 274, 326, 521-2, 569; ii, 764. 

8 Authority of Mr. Joseph M. Gushing, a surviving member of the 
Baltimore City delegation. 

7 For an opponent's estimate of Mr. Stirling, see Deb., iii, 1748. 

385] The Maryland Constitution of 1864. 39 

for the most modern and advanced measures, and aroused 
little opposition or jealousy on the part of the county mem- 

The thirty-five Democrats who formed the minority, 
bravely, tenaciously and ably upheld their principles in a 
manner worthy of admiration, but always professed their 
loyalty to the Union as embodied in the Constitution of 
the United States. Their position was based on state's 
rights, a policy of conciliation toward the South, and, as far 
as possible, a continuation of political and industrial con- 
ditions as existent in the state and nation before the out- 
break of the war, which they condemned as unnecessary 
and an oppression of the South. They asked if it was 
" any more treason for the South to subvert the Constitu- 
tion by force of arms, than . . . for President Lincoln, 
with his army, to subvert the Constitution by force of 
arms." ' 

These members came entirely from the ten southern and 
Eastern Shore counties of Kent, Queen Anne's, Dorchester, 
Somerset, Anne Arundel, Montgomery, Prince George's, 
Charles, Calvert and St. Mary's. These were the counties 
which were usually designated by the Union men as 
" Rebel " and " Pro-Slavery." ' 

One of the majority members has since said in private 
conversation that the minority contained " a larger num- 
ber of brilliant men for its size than any other body which 
has ever come together in a legislative capacity in Mary- 
land." Though no one man stands out as their leader in 
the same dominating capacity as did Mr. Stirling in con- 
nection with the majority, perhaps David Clarke, of Prince 
George's comes nearer to this position than any other. His 
speeches in the Convention, when read at the present day, 
are of the greatest interest, as showing the attempt of a bril- 
liant man of modern times to justify and perpetuate the 
institutions of a bygone age. In fact, this may be said of 

8 Deb., ii, 1357. 9 " American," May 4, 1864. 

40 The Maryland Constitution of 1864. [386 

a number of the minority members. Edward W. Belt, also 
of Prince George's, was an exceedingly strong man, in 
many ways tme of the most advanced of his party, as his 
course on the " usury " question will show. 10 A third man 
from the same county, Samuel H. Berry, and also Oliver 
Miller, of Anne Arundel; James U. Dennis, of Somerset; 
James T. Briscoe, of Calvert, and John F. Dent, of St. 
Mary's, were all of great force and influence. With them 
should be mentioned Ezekiel F. Chambers, of Kent, who 
always acted with the minority, and at last definitely iden- 
tified himself with them, although at first claiming to rep- 
resent no party. Though elderly and usually of too great 
conservatism, yet his prominence is apparent when we 
observe that he had been sixteen years in the State Legis- 
lature and in Congress; had been a member of the Conven- 
tion of 18501, and was about to be the Democratic candi- 
date for Governor in the fall of 1864. 

The minority, in addition to opposition in debate and by 
vote, showed great ingenuity in falling back from one posi- 
tion to another, as soon as the former was made untenable. 
A good instance of this will be seen in the emancipation 
question, where a continuation of slavery, state and na- 
tional compensation, and negro apprenticeship were advo- 
cated in turn. Both parties were very ready to call for the 
yeas and nays on leading questions, especially the minority, 
who desired to put their opponents individually on record 
as favoring the extreme measures which were passed. 
They also used tactics of delay in some instances, but with 
little success, as the majority could usually outvote them. 
Hence they did not carry this sort of opposition very far, 
knowing the final futility of any such attempts. At times 
vigorous complaint was made against the use of the pre- 
vious question by the majority in order to shut off debate. 
This was largely during the latter half of the session of the 
Convention, when the work was being pushed with great 

10 See pages 82-83. 

387J The Maryland Constitution of 1864. 41 

The first two months were mainly occupied with long and 
vigorous debate on the slavery and National allegiance 
questions, in which both sides expressed their views freely 
and often at great length. The majority frequently pro- 
fessed themselves as desiring perfect fairness," and the 
records go to show that, as a rule, such was the case." Con- 
sidering the weight of the questions involved, and the close 
personal interest in them on the part of the members of the 
Convention, many of whom not only owned slaves, but 
had relatives and friends in the opposing armies, the debates 
show a remarkable lack of personal abuse and recrimina- 
tions. This was at a time when the fiercest of campaigns 
were being waged by Grant and Lee in Virginia, and 
Sherman and Johnston in Georgia, while the state of Mary- 
land itself suffered under an extensive invasion. In addi- 
tion, the whole country was agita'ted over the political cam- 
paign preceding the presidential election of 1864, and 
charges of " lawless oppression " were answered with the 
terms of " traitor " and " Copperhead." It is pleasing to 
note that throughout the entire period of the Convention in 
Annapolis, the personal relations of the members were most 
pleasant. Great cordiality prevailed, and friendly discus- 
sion and quiet conversation on matters pertaining to the 
business of the Convention frequently took place as the 
members of the opposing parties met in their daily affairs 
outside the State House walls. 

On Wednesday, April 27, as above stated, the Convention 
held its first meeting. Henry H. Goldsborough, of Tal- 
bot County, the State Comptroller, was elected president, 
receiving the entire vote of the fifty-eight Union men 
present. Ezekiel F. Chambers, of Kent, had been placed 
in nomination for the office by the opposition, but de- 
clined, and the twenty-one minority members did not vote. 
The remainder of the process of organization was speedily 
effected during the next few days. The standing com- 

11 Deb., i, 118, 207, 350. " Deb., i, 569. 

42 The Maryland Constitution of 1864. [388 

mittees, authorized on April 28, were appointed on May 4, 
and to them were at once referred the many suggestions 
that had already been made by various members, as to 
provisions to be embodied in the new Constitution. On the 
same day a committee of six from the Baltimore City 
Council, three from each branch, presented unanimous 
resolutions passed by that body, inviting the Convention to 
hold its sessions in Baltimore, and offering to engage a hall 
for that purpose at the expense of the city. There was a 
short debate as to the advisability of the step, it being 
urged that Baltimore would be a much more convenient 
place of meeting, for the Eastern Shore members in par- 
ticular. Although the contrary ground was taken that it 
would be illegal to move the Convention from Annapolis, 
yet motives of expediency really prevailed, and the invi- 
tation was declined by a non-partisan vote of 51 to 35." 

On June 2 an unsuccessful attempt was made by several 
members to reconsider this action, but nothing further came 
of it." On May 12, Mr. Kennard, of Baltimore City, made 
the report of the Committee on Rules." This report em- 
bodied the usual rules governing legislative bodies, and 
was finally adopted with slight amendments on May 23." 
Provisions for the Constitution were required to be passed 
by a majority of the members elected to the Convention, 
but this was afterwards changed by motion of Mr. Cushing, 
of Baltimore City, to a majority of those present" The 
minority strongly opposed this, claiming that, as fifty mem- 
bers would make a quorum, twenty-six out of the ninety- 
six elected could thus put a final provision in the Consti- 
tution. 1 * The first vote on the question was adverse, but 
being brought up again under a slightly different form, it 
was passed by a vote of 47 to 33, though several of the ma- 
jority opposed the measure. The majority based their 

13 Proceedings, 19-21. 14 Proc., 147; Deb., i, 300-1. 

15 Proc., 46-56. " Proc., 90. 

17 Proc., 109-10, 115-8; Deb., i, 180-5, 202-12. "Deb., i, 181. 

389] The Maryland Constitution of 1864. 43 

main argument on the desire to expedite business. It 
should be added, that during the consideration of the re- 
port the minority made every possible attempt to have a 
large vote of those elected to the Convention required on all 
important questions, but their amendments to that effect 
were regularly voted down. 18 They thus lost all oppor- 
tunity for delaying proceedings by absence from the Con- 
vention and like expedients. 

Almost two months were consumed before the Conven- 
tion had perfected its organization and passed the Declara- 
tion of Rights which contained the very important provi- 
sions in regard to slavery and allegiance. During the first 
five weeks of the session the debate was unlimited, both 
sides indulging in speeches of great length, but on June 2 
the time was limited to one hour, the minority voting in the 
negative, as it seems to have been particularly desired that 
absolute freedom be allowed until the Declaration of Rights 
was disposed of. 50 The majority again urged expediency, 
and the usual arguments were successively brought up later, 
when the debate was further restricted, on July 7," to thirty 
minutes, a two-thirds vote of the members present being 
necessary to allow the speaker to proceed. On July 29 a 
limit of fifteen minutes during the discussion of a basis of 
representation was imposed," and definitely placed at twenty 
minutes on all questions on August 24. M On August 31 
the absurdly small limit of five minutes was attempted but 
voted down, the negative vote being cast by the solid 
minority and several majority members. On July 7, Mr. 
Belt, of Prince George's, had offered the sarcastic motion 
that " there shall be no debate on any subject whatever," 
which was of course lost." 

The Convention adjourned over from June 4 to the. 
9th, on account of the Republican National Convention, to 
which several of its members were delegates. That body 

19 Proc., 75-6. * Proc., 146-7; Deb., i, 293-300. 

21 Proc., 230-2. M Proc., 356. a Proc., 562. " Proc., 232. 

44 The Maryland Constitution of 1864. [390 

met in the Front Street Theatre, Baltimore, on June 7, 
1864. It adopted a platform strongly urging the prosecu- 
tion of the war and endorsing the policy of the National 
Administration. After nominating Lincoln and Johnson, 
it adjourned on June 8. 

The Convention again, on June 24, adjourned over till 
July 6, as a number of the members desired time to attend 
to personal affairs, especially the farmers, who had their 
crops to harvest. 15 Work had hardly been resumed, when 
the celebrated " Rebel Raid " occurred and interrupted pro- 
ceedings for nearly two weeks more. This invasion of 
Maryland deserves some attention, as it was of great con- 
sequence to the people of the state, and caused a bitter 
clash between the opposing sides in the Convention. 

During the latter part of June, 1864, General Lee sent 
General Jubal A. Early with a force, probably some fifteen 
thousand men, to move down the Valley of Virginia and 
make a demonstration against Washington, hoping thus 
to relieve the pressure of General Grant's armies upon 
Richmond. This force, after crossing the Potomac near 
Shepherdstown and Falling Waters, occupied Hagerstown 
on July 6, and its advance skirmished with Union troops as 
far as Frederick. On Friday, July 8, the main body occu- 
pied this town, and on the next day (July 9) met and de- 
feated General Lew Wallace at Monocacy Junction. The 
Union force was estimated at between seven and eight thou- 
sand men, and was composed of those troops which Gen- 
eral Wallace was able to collect in order to defend Balti- 
more. It behaved well in the battle which lasted nearly 
eight hours, but retreated in great disorder to Ellicott's 
Mills. The main Confederate force turned south and occu- 
pied Rockville, threatening Washington and skirmishing 
within sight of that city. A small cavalry force, of which 
Major Harry Gilmore was one of the commanders, was 
sent to operate north and east of Baltimore. It cut the 

"Proc., 225-6; Deb., i, 743. 

391] The Maryland Constitution of 1864. 45 

Northern Central Railroad near Cockeysville on July 10, 
and pushed across the country, cutting the telegraph wires 
on the Harford and Philadelphia turnpikes. A small de- 
tachment came down Charles Street Avenue and burned 
Governor Bradford's handsome residence five miles from 
Baltimore at an early hour on the morning of July n. This 
was done as a retaliation for the burning of the residence 
of Governor Letcher, of Virginia, by a Union force under 
General Hunter. 

There was skirmishing on the York Road at Govans- 
town, a few miles from the city, and also near Pikesville, 
but the main part of the force struck the Philadelphia Rail- 
road at Magnolia Station, eighteen miles from Baltimore, 
and captured two of the morning trains from the city; also 
burning the Gunpowder River bridge. They soon after 
retired toward the west and joining the main body of Gen- 
eral Early's army, the whole force recrossed the Potomac 
at Seneca and near Poolesville, carrying a large amount 
of booty with them. A levy of $200,000 had been laid 
upon Frederick and collected before the town was evacu- 

The excitement throughout the state was most intense, 
but at no place greater than in Baltimore City, especially 
on Sunday, July 10, when it was learned that General Wal- 
lace had been defeated at Monocacy. The city was 
startled at an early hour of that day by the general ringing 
of alarm bells, and in a short time the streets were thronged 
with excited crowds. A joint proclamation was issued by 
Governor Bradford, who was in the city, and by Mayor 
Chapman, calling upon the citizens to rally at once to resist 
the invaders, and the City Council, by a joint resolution, 
appropriated $100,000 to aid in the defense. The call 
met with a ready response, and it was estimated that about 
ten thousand of the citizens of Baltimore were organized. 
Major-General E. O. C. Ord arrived in the city on Monday, 

See contemporary newspapers for further particulars. 

46 The Maryland Constitution of 1864. [392 

and, by order of President Lincoln, assumed command of 
the 8th Army Corps, relieving General Wallace from that 
charge. Fortifications were rapidly thrown up and further 
preparations were hastily made, in anticipation of the threat- 
ened assault, but of course this never occurred, as General 
Early retreated soon after. It is said that after the first 
excitement there was great quiet and good order in Balti- 
more, affairs soon subsiding again into their usual chan- 
nels. General Wallace was restored to his command on 
July 28." 

During this raid most of the Convention members left 
Annapolis, and no regular meetings were held for ten days. 
President Goldsborough and a few members remained in 
the town, and by meeting and adjourning from day to day, 
kept the organization of the Convention intact, till business 
was resumed on July 19. Mr. Goldsborough and several 
others also did duty in the fortifications of Annapolis. As 
a result of the invasion, some effect on the temper of the 
Convention was to be expected, and this was not long in 
appearing. On July 9, before the nearness of the danger 
caused the Convention to scatter, Mr. Cushing, of Balti- 
more, offered a resolution protesting loyalty to the Union, 
and " preferring rather than consent to the destruction of 
the Union of these United States, to have the whole land 
laid waste and its entire population destroyed, hoping that 
in the future, it might be resettled by some race of men more 
capable of appreciating and preserving Liberty and Union." 
Further, all sympathizers with the rebellion were denounced 
as " recreant to the faith of their Fathers, forsaken of God, 
and instigated by the devil." There was some difficulty in 
securing a quorum, as the attendance was small on that 
day, but in spite of a minority attempt to adjourn, the reso- 
lution was successfully passed." 

On July 19, immediately after business was resumed, 

17 See contemporary newspapers for further particulars. 
M Proc., 247-9. 

393] The Maryland Constitution of 1864. 47 

there was another outburst of great anger on the part of 
the majority. By motion of Mr. Hatch, of Baltimore City, 
thanks were tendered to Ishmael Day, of Baltimore County, 
" for the heroic and gallant act in shooting down the traitor 
who dared to pull down the country's flag." Mr. Schley, 
of Frederick County, offered an order that the Convention 
request the President, " as an act of justice and propriety, 
4o assess upon known sympathizers with the rebellion resi- 
dent in this state, the total amount of all losses and spolia- 
tions sustained by loyal citizens of the United States resi- 
dent in this state, by reason of the recent rebel raid, to 
compensate loyal sufferers." This was passed by a vote of 
33 to 17, the minority solidly opposing it." On the follow- 
ing day Mr. Belt offered a resolution that this order " was 
improvidently passed, and that the same be and is hereby 
rescinded," but it was overwhelmingly defeated by the ma- 
jority members. 30 On this same day Mr. Stirling sub- 
mitted resolutions which, considering the number of South- 
ern sympathizers in Maryland, as the experience of the past 
two weeks had shown, demanded of the Government of the 
United States that all those refusing to take the oath of alle- 
giance or who shall have been " proved to have taken part 
with or openly expressed their sympathy with the recent 
invasion of the state ... be banished beyond the lines of 
the army or imprisoned during the war." ' These resolu- 
tions were passed on July 21." The minority consistently 
fought all these extreme proceedings, the resolutions being 
characterized as " unjust, extraordinary and inhuman," " 
and they not only voted against them, but actively opposed 
them in debate, urging in particular that the Convention 
was exceeding its authority by thus acting in a legislative 
capacity. Mr. Belt vainly attempted to amend Mr. Stirl- 
ing's resolutions by declaring that nothing contained 
therein should* be taken to endorse any other theory of the 

39 Proc., 257-8. " Proc., 267-8; Deb., ii, 830-1. 

81 Proc., 265-6. M Proc., 273-7. " Deb., ii, 873. 

48 The Maryland Constitution of 1864. [394 

war than that declared in 1861, in which state's rights had 
been guaranteed and the desire expressed to preserve the 
Union according to the ante-bellum conditions." Mr. 
Sands, of Howard, well expressed the position of the ma- 
jority members by saying: " It comes to the question 
whether you will give to the loyal people of the state of 
Maryland the power of the state, or whether you will allow 
the secessionists to force them to the wall and make them 
give up all their rights under the- Constitution and the 
government or drive them from the state. For one, as a 
Union man, holding my allegiance to the government 
straight through, I prefer to be one of the men that shall 
live in Maryland.'" 

On August 5, Mr. Chambers, on behalf of the thirty-five 
minority members, presented a protest signed by all of 
them, in which they strongly condemned these various 
resolutions. In this protest they stated that the delegates 
to the Convention " were elected under a law of the state, 
to form a new constitution of civil government to be sub- 
mitted to the people, and not to invite the inauguration of 
an unlimited military despotism in the state." The resolu- 
tions were condemned as being in direct conflict with many 
provisions of the Declaration of Rights as lately adopted. 
The protest closed by saying: " In behalf of the people 
we represent, and of all the peace-loving and law-abiding 
people of Maryland, and in behalf of all the fundamental 
principles of civil liberty and constitutional government, 
we enter this, our formal protest, against the said action of 
the said delegates to this Convention." 3 

The majority stigmatized this protest as discourteous to 
the Convention, and it was refused a place upon the journal 
by a vote of 42 to 26, although several of the Union mem- 
bers opposed this latter action, and five of them voted with 
the Democrats." This closed the incident. 

14 Proc., 273-5- 

85 Deb., ii, 826. For debate on the various resolutions, see Deb., 
ii, 800-1, 820-31. 
"Deb., ii, 1128. "Proc., 397; Deb., ii, 1126-38. 

;?95] The Maryland Constitution of 1864. 49 

A point of much importance during the sessions of the 
Convention was the question as to the eligibility of certain 
members. It was commonly known that a number of them 
were ineligible, according to the Convention Bill, which 
imposed the same qualifications as those necessary to a seat 
in the House of Delegates. On July 7, Mr. Miller sub- 
mitted an order requiring the Committee on Elections to 
make a report as to what the qualifications for a seat in the 
Convention actually were, but added that he meant this 
to be an entirely non-partisan measure, as it would equally 
affect both the majority and minority. This order was 
tabled by motion of Mr. Stirling, who stated that it would 
either accomplish nothing or else result in breaking up the 
Convention. 88 The Committee on Elections, which had 
been appointed early in the session, had as yet made no 
report, so on July 8 Mr. Chambers submitted an order re- 
questing the committee to do so as soon as possible. A 
favorable vote on this was at once secured, but Mr. Cush- 
ing's order instructing the committee to report all members 
duly elected was lost by a vote of 17 to 47." On August 3 
the committee, consisting of of four Union and two Demo- 
cratic members, unanimously reported all the members as 
duly elected. 40 This report was concurred in on August 9 
by a vote of 55 to 4, Mr. Miller being the main opponent 
and basing his adverse argument on legal technicalities. 41 
On August 6 Mr. Belt had offered a resolution declaring, 
for reasons stated, that eleven named members were in- 
eligible to a seat in the Convention, himself being one of 
the number. 42 This was indefinitely postponed on August 
9, and never appeared again. 43 It is worthy of note that, 
although two members of the minority, Mr. Miller and Mr. 
Belt, were the ones who insisted on the inquiry and led in 
this " strict construction " movement, the final action was 

88 Proc., 229; Deb., ii, 796. M Proc., 240-2. 

40 Proc., 385-6. "Proc., 435-6; Deb., ii, 1195-1201. 

41 Proc., 414-5. ** Proc., 436. 


50 The Maryland Constitution of 1864. [396 

entirely non-partisan, it being the general sentiment of the 
Convention that the people in their sovereign capacity had 
the right to elect whomsoever they pleased to represent 
them in that body, even the Convention Bill to the con- 
trary, though some based their position on different inter- 
pretations of that instrument." 

The Convention held one session a day till July 21, when 
it was decided to meet in the evening as well, on every 
working day except Saturday." These latter sessions were 
not attended very well as a rule, there being no quorum 
present on eight different evenings. There was much delay 
in the work of the Convention, the larger part of the new 
Constitution as finally adopted being passed during the last 
six weeks of the session. The long discussion of the 
Declaration of Rights and the interruptions consequent 
upon the pressure of outside affairs as stated above, were 
largely responsible for this. As the people of the state were 
beginning to show impatience, 46 the general result was haste 
towards the end, although this caused additional mutterings. 
Three sessions were held each day during the five days pre- 
ceding adjournment. 

The Convention finally adjourned on Tuesday, Septem- 
ber 6, 1864, having passed a resolution that, in view of the 
uncertain condition of affairs in the state " which might in- 
terfere with the expression of the popular will on the day 
to be fixed for voting on this Constitution," the adjourn- 
ment was subject to the call of the president, and in case of 
his death or disqualification, Messrs. Schley, Pugh, Stock- 
bridge and Purnell were authorized, in the order named, 
to act as president and call the Convention together. 47 

A resolution of thanks to President Goldsborough for his 
" dignified, efficient and impartial discharge of the duties 
of the chair " was offered by Mr. Chambers, and unan- 

" Deb., ii, 764-8; iii, 1730. *> Proc., 272. 

" American," June 10, Aug. 2; Frederick " Examiner," June 
22; Deb., i, 98, 148, 204-5, 322-4. " Proc., 600, 773. 

397] The Maryland Constitution of 1864. 51 

imously adopted, several of the minority leaders heartily 
endorsing it. 48 The order in the Convention had been ex- 
ceptionally good. 48 

The sessions of the Convention had lasted four months 
and ten days, and the average daily attendance had been 
about sixty. The largest number present on any one day 
was ninety-one, on June I, and the smallest was seven, on 
July 1 8, at the close of the period of Early 's invasion. There 
was numerous attempts to compel the attendance of mem- 
bers, to publish the names of absentees, or to deduct pay 
for unexcused absence, but they all came to nothing, being 
usually tabled by good majorities. 50 

As stated above, there was no inducement for the 
minority to attempt to delay proceedings by absenting 
themselves from the Convention, as the majority were nu- 
merically large enough to transact business without any aid 
from their opponents, after the rules of order had been 
modified to permit the adoption of a provision by a ma- 
jority of the members present. 

After some vacillation and delay, showing that there must 
have been some compunctions of conscience on the part of 
several members, the Convention followed the example of 
the preceding legislature (1864), and by a small majority, 
voted themselves $100 extra mileage." They based this 
action on the clause in the Convention Bill allowing them 
the same mileage as the Legislature, and thus threw on the 
other body any blame for an illegal proceeding. This 
action was entirely non-partisan, the leading members of 
both sides dividing into opposing groups on the question. 

It should be added, that in compliance with the Con- 
vention Bill the debates and proceedings of the Convention 
were well reported, and in point of excellence far exceed 
many of the other state documents and reports of that time. 

Having taken this survey of the sessions of the Conven- 

48 Proc., 709; Deb., iii, 1852. *" Deb., iii, 1757. 

00 Proc., 78, 89, 157, 162-3, 183, 286, 498. 51 Proc., 707, 715-8. 

52 The Maryland Constitution of 1864. [398 

tion and its workings as a whole, we now come to the far 
more important consideration of the results as shown in 
the new Constitution submitted to the people. 

The first report made by the standing committees having 
in charge the various provisions for the Constitution was 
that on the " Declaration of Rights " on May 12." As 
reported, and, in fact, as finally adopted, it was largely 
identical with the original " Bill of Rights " adopted in 
1776, and incorporated in the Constitution of 1851." 

The consideration of the report was immediately begun, 
and consumed more time than any other part of the Con- 
stitution, occupying the larger part of the first half of the 
entire session of the Convention, for it settled some of the 
questions that had helped to influence the call for a new 

Foremost in importance was the new article of the report, 
which abolished slavery in Maryland, providing that " here- 
after in this state, there shall be neither slavery nor invol- 
untary servitude, except in punishment of crime, whereof 
the party shall have been duly convicted; and all persons 
held to service or labor as slaves, are hereby declared 
free." l This article was reached on June 17, and was hotly 
debated for a week. It is hardly necessary to review the 
various speeches, as the usual arguments were set forth by 
both sides, and though most ably presented, were largely 
a re-statement of those heard throughout the nation during 
the preceding hundred years. For instance, the minority 
would absolutely justify slavery by long quotations from 
the Bible, and the majority, on the other hand, would in- 
sist that the American slave system differed radically from 
that acknowledged by the Scriptures. In addition, these 
latter members denounced the institution as immoral, un- 
just, and an incubus upon the life of the state. Ancient 

Proc., 58-64. (The minority report was defeated.) 
Deb., i, 185. 
84 Article 23 in report, Article 24 in t he Constitution as adopted. 

399] The Maryland Constitution of 1864. 53 

and modern law, the Declaration of Independence and Con- 
stitution of the United States, the writings of the founders 
of the Republic, Supreme Court decisions, and various 
enactments since the formation of the Union in fact, every 
conceivable authority or argument of any time or age was 
skilfully advanced by the advocates of the respective sides 
of the question. Although knowing the final outcome 
would certainly be against them, the minority stubbornly 
continued the fight till the last. They suggested the in- 
corporation of provisions prohibiting the immigration of 
free negroes into Maryland, or any contracts with or em- 
ployment of such persons, and providing for the coloniza- 
tion outside of the state of those negroes already within 
her borders. 60 

Also, Mr. Clarke offered a substitute to the emancipa- 
tion article, which declared the slaves in Maryland free 
after January I, 1865, but on condition that the United 
States Congress before that time should appropriate the 
sum of twenty million dollars to compensate the owners 
for their slaves. 80 This was of course opposed by the ma- 
jority as it would in all probability have been a very suc- 
cessful means of indefinitely continuing the institution, 
and the amendment was withdrawn by general consent." 
Mr. Brown of Queen Anne's offered another amendment 
providing for state assumption of the duty of the comfort- 
able maintenance of the helpless and paupers emanci- 
pated, but this was voted down. 88 The final vote on the 
article as reported by the committee was taken on June 
24, and the provision was adopted on strict party lines by 
53 yeas to 27 nays. 8 " This action, so momentous in its 
consequences, was but the fulfillment by the Convention 
of the Unconditional Union victories of November 4, 1863 
and April 6, 1864, and although it had yet to pass the same 
ordeal of a further ratification by the people, slavery was 
practically dead from that hour. 

53 Proc., 79-8o. so Proc., 210. " Proc., 215. 

18 Proc., 219, 223-4. w Proc., 224-5. 

54 The Maryland Constitution of 1864. [400 

Granting the fact that they should lose their slaves, the 
owners naturally desired to obtain some sort of compen- 
sation, and the minority never abandoned one form or other 
of this idea. This might be effected in two ways by the 
state, or else by the nation. As state action could be 
controlled by the Convention to a great extent, while any 
reliance on Congressional action would be fallacious, the 
minority insisted on this former measure. On the other 
hand, as already stated, the spring campaign had been 
fought on this very question, with the result that nearly 
all the Union delegates were pledged against it with the 
exception of those from Baltimore and Howard counties, 
but even these were merely instructed to procure national 
compensation if possible. Also a majority caucus held in 
Annapolis on April 28 at the beginning of the session 
unanimously decided that the Convention was bound by 
the popular verdict to emancipation without state com- 

The minority nevertheless firmly maintained that slaves 
were or had been private property w r hich should not be 
taken for public use without compensation. 61 The ma- 
jority either denied this in toto or else held that slavery was 
a " nuisance," and no payment should be given for the 
abatement of it. 02 Other arguments were brought forth 
by the latter, including the statement that they were un- 
willing to saddle the state with' a large debt for this pur- 
pose," the Baltimore delegates in particular objecting on 
account of the fact that while a large part of the conse- 
quent increase of taxation would fall on the city, it would 
receive a small portion of the compensation, owing to the 
comparatively few slaves within its bounds. The majority 
report of the Committee on the Legislative Department, 

""American," Apr. 30, 1864. 

61 Deb., i, 596-721. " Deb., i, 590-1. 

* The slaves were valued at from thirty-five to forty million 
dollars in 1860. Mr. Clarke's representative scheme of compensa- 
tion involved a payment of about twenty-six millions (Deb., i, 656). 

401] The Maryland Constitution of 1864. 55 

made a few days before, had contained the provision (sec- 
tion 40) that " The General Assembly shall pass no law, 
nor make any appropriation to compensate the masters or 
claimants of slaves emancipated from servitude by the 
adoption of this Constitution." e A minority report pro- 
posed a provision especially giving this power, 95 but it was 
voted down when introduced as an amendment/* Mr. 
Brown here again attempted to introduce an article pro- 
viding for the maintenance of the emancipated slaves un- 
able to support themselves," but the majority defeated it, 
urging that the counties rather than the state should care 
for the local poor, and that the regular laws of the state 
dealing with this subject would be sufficient. 88 A motion 
to strike out the above section of the committee report 
failed, and it was adopted on July 25 by the vote of 38 to 
13."" Mr. Briscoe of Calvert on August 31 made the last 
attempt of the minority to obtain state compensation by 
shrewdly offering an amendment to the provisions for the 
taking of the vote on the Constitution, which provided 
that at the same time there should be a separate vote on 
this question. This was promptly defeated with no debate 
of any consequence, the " previous question " being used/ 
The minority doggedly turned next to the question of 
national compensation, and with slight success, for the 
majority members, although rather generally opposed to 
this as well, might have been put in an embarassing posi- 
tion had they openly come out against it. It will be at 
once remembered that one of the great traits of the Un- 
conditional Union party, to which most of the latter be- 
longed, had been uncompromising support of President 
Lincoln's entire policy, and that necessarily included his 
offer of national compensation for the slaves in the border 

64 Proc., 193- M Proc., 209. M Proc., 304. 

Proc., 306. " Deb., ii, 954, 957; Proc., 309. 

09 Proc., 309-10, Article 3, sec. 36, of the Constitution. 
70 Proc., 669-70. 

56 The Maryland Constitution of 1864. [402 

states. The Democrats in the Convention did not fail 
to push their advantage. 

Early in the session Mr. Clarke had presented a reso- 
lution providing for a select committee to confer with 
President Lincoln on the subject, 71 but Mr. Negley of 
Washington offered an amendment including a declaration 
of emancipation in Maryland, and the whole matter was 
tabled without debate. 72 We have also seen Mr. Clarke's 
second unsuccessful attempt, in which he desired to make 
emancipation conditional upon national aid. 71 But as the 
question of slavery within the state was now definitely 
settled, the majority could no longer oppose action looking 
toward national compensation on the ground that it af- 
fected the final result in the state, so on July 26, Mr. 
Duvall of Montgomery submitted a provision to be added 
to the legislative report allowing the General Assembly 
to provide for the distribution of any money received from 
the General Government for the purpose of compensating 
the slave-owners. Mr. Jones of Somerset added an 
amendment including among the beneficiaries the owners 
of those slaves which had been taken under the authority 
of the President for use in military and other like enter- 
prises, but this however was lost. Mr. Stirling now 
grasped the situation and offered a provision which seemed 
to satisfy both sides and was at once adopted with only 
one negative vote. 14 It was incorporated in the Constitu- 
tion as Article 3, section 45, and provided that the " Gen- 
eral Assembly shall have power to receive from the United 
States any grant or donation of land, money or securities 
for any purpose designated by the United States, and shall 
administer or distribute the same according to the condi- 
tions of the said grant." The motion that the General 
Assembly be required in addition to make some provision 
for perpetuating records of slave ownership was at once 
defeated eta the ground that it was unnecessary." 

71 Proc., 134. 71 Proc., 147-8. n See page 53. 

74 Proc., 319-20. "' Proc., 332-4; Deb., ii, 997-1000. 

403] The Maryland Constitution of 1864. 5? 

With the object of making as certain as possible any 
prospect of the desired governmental aid, the minority 
finally succeeded in having passed near the close of the 
Convention a resolution appointing a committee of seven 
to visit Washington and request of the President that he 
recommend to Congress an appropriation for the former 
slave-owners of Maryland." The committee was duly ap- 
pointed but the compensation was never received. It 
should be mentioned that the majority somewhat lessened 
any feelings of elation which the so-called " Rebel " slave- 
owners might feel at the prospect of receiving " Green- 
backs " from the Government, by providing that the latter 
should first take the oath of allegiance before receiving 
any such sums." 

However, the minority were not at all satisfied with this 
small gain, but continued to use every expedient to per- 
petuate at least a small part of the former slave-owners' 
rights. With this object in view they heartily supported 
the project of the apprenticeship, particularly to their 
former owners, of negro minors. This subject was, for- 
tunately for them, brought forward by a member of the 
majority. Mr. Todd of Caroline, with several others of 
his party, favored such a step, though the larger part of 
them had been pledged against it as one of the campaign 
issues, 7 " and opposed it as being either unnecessary under 
the existing state law for apprenticeship, or else a " con- 
cession to the slave power" which practically postponed 
the emancipation of minor slaves till they became of age. 78 
The minority on the other hand held that apprenticeship 
would be only a merciful provision for many helpless chil- 
dren, and a small measure of justice to the former owners 
in giving some return for the previous support of minors 
during their infancy. Mr. Negley and Mr. Purnell were 
two of the Union members who held these views. 80 The 

7 " Proc., 713-5. " Proc., 719, 771-2- 78 See page 32. 

Deb., iii, 1577, et seq. M Deb., iii, 1583, 1591-2. 

58 The Maryland Constitution of 1864. [404 

movement for apprenticeship, although prominent in the 
minds of the members during a large part of the debate, 
particularly during the consideration of the questions of 
emancipation and compensation and of the legaislative de- 
partment, 81 did not assume final form till August 26, when 
Mr. Todd submitted his proposition in the form of an 
amendment to the report of the Committee on the Judi- 
ciary Department, providing an additional section which 
made it the duty of the Orphan's Courts of the state to 
bind out till they became of age " all negroes emancipated 
by the adoption of this Constitution, who are minors, in- 
capable of supporting themselves, and whose parents are 
unable to maintain them," with the addition that " in all 
cases the preference shall be given to their former mas- 
ters, when in the judgment of said courts they are suitable 
persons to have charge of them." Amendments offered by 
Mr. Schley of Frederick and Mr. Stockbridge, respectively, 
requiring the consent of the " parents or next friend of 
the minor," and that masters should be bound to have 
their apprentices taught to read and write, were both lost. 
The section was divided for the vote, the first part allow- 
ing apprenticeship being carried by the vote of 51 yeas 
(including 28 majority votes) and 20 nays, and the second 
part, giving preference to the former owners, by 45 yeas 
(21 majority votes) to 27 nays." On the next day (August 
27) the Union men, who were evidently rallying their 
forces, introduced and carried by large majorities on a 
strict party vote two new sections, the first requiring that 
masters should take a stringent oath of allegiance before 
negro apprentices were bound to them, and the second 
prescribing heavy fines or punishment for those who de- 
tained in slavery any persons emancipated by the Constitu- 
tion. 8 *. This latter section was incorporated in the new 
Constitution, 84 but the former one, as well as Mr. Todd's 

n Proc., 311-2. M Proc., 593-8. 

81 Proc., 604-7. ** Art. iv, sec. 12. 

405] The Maryland Constitution of 1864. 59 

proposition, was finally reconsidered and defeated on Sep- 
tember 2. The yeas and nays were demanded in the vote 
on the main proposition and showed that a number of the 
minority were now against it, the cause of this change 
being in all likelihood the same as that given by Mr. 
Chambers, who now opposed the proposition as " encunv 
bered with loyalty oaths." ' 

From the above results of the action on the slavery and 
emancipation questions it can be seen that although the 
minority skilfully advocated one point after another, and 
tried their best to secure some of the old privileges from 
the general ruin that threatened them, they were over- 
powered and defeated on every point of importance, and 
had only the poor consolation of a vague chance of na- 
tional compensation which after all never came to pass. 

A second great question involved in the Declaration of 
Rights, and one which vitally affected several of the pro- 
visions of the Constitution, was that of allegiance to the 
United States. The report of the committee contained 
the following as Article 4" "the Constitution of the 
United States, and the laws made in pursuance thereof, 
being the supreme law of the land, every citizen of this 
state owes paramount allegiance to the Constitution and 
Government of the United States, and is not bound by any 
law or ordinance of this state in contravention or subver- 
sion thereof." 

This declaration, enjoining upon the citizen a proper 
allegiance to the Constitution of the United States, which 
presupposes allegiance to the Government when constitu- 
tionally conducted, thus contained in addition the danger- 
ous principle of absolutely denying any original or inherent 
rights on the part of the State of Maryland, which would 
enable it to make the least opposition to any acts the 
National Government might see fit to commit. While the 

85 Proc., 689-91; Deb., iii, 1797-1800. 

86 Proc., 58. (Article 5 in Constitution as adopted.) 

60 The Maryland Constitution of 1864. [40G 

tendency of the present day is to cede more and more au- 
thority to the National Administration, yet there is cer- 
tainly no disposition to take away all inherent power from 
the states as such, or vest in the Federal Government all 
authority not absolutely guaranteed to the state by the 
United. States Constitution. . This last is clearly the result 
to which the article tended. 

This movement on the part of the majority was the di- 
rect outcome of the war as caused by the assertion of 
state's rights on the part of the South, and as waged 
according to the necessarily radical measures of Mr. Lin- 
coln. Though evidently subject to the greatest abuse, it 
was in reality an attempt to assert the absolute indivisi- 
bility of the Union, and the paramount authority of the 
National Government when acting within the letter of the 

The members of the minority in the Convention, most 
of whom were firm believers in the doctrine of state's 
rights as held by the South, and in a large measure of 
sovereignty vested in the states as such, in some cases 
even went so far as to practically justify the South in its 
action on the question. They were naturally much 
aroused by this enunciation of paramount allegiance to 
the National Government, and were unable to condemn 
the article in sufficiently strong terms. 87 The debate on 
the article was long and brilliant, consuming a large part 
of the time for over two weeks, and was a careful treat- 
ment of the history of our country from earliest colonial 
times down to the causes of the war, as well as a review of 
the growth of justice and freedom from the days of Run- 
nymede to the present time. Although the question was 
touched upon to some extent during the consideration of 
other subjects throughout the entire session of the Con- 
vention, Mr. Clarke on June i opened the regular debate 

87 A minority report from the committee condemned this article 
in addition to the one embodying emancipation. (Proc., 63-4.) 

407] The Maryland Constitution of 1864. 61 

on the article in a masterly speech of several hours dura- 
tion. 88 He began by offering an amendment in part de- 
claring " allegiance to the Constitution and Government 
of the United States within the limits of the powers con- 
ferred by that Constitution," and giving to the State of 
Maryland sovereignty in so far as it is not restricted by 
the Constitution. 8 " The gist of his argument was that the 
states were sovereign as states, but that they had yielded 
up a sufficient amount of their sovereignty to the General 
Government to deprive them, among other things* of the 
power of seceding from the Union, and that the article as 
reported specifically deprived the states of that measure of 
sovereignty which was inherently theirs. This may be 
taken as the average position of the minority on the ques- 
tion, for although some, as above stated, went further in 
their assertion of state's rights, yet others stopped short 
of it, while all protested their personal loyalty to the Na- 
tional Constitution. 

The position of the majority is so well given by the ar- 
ticle itself that there is no necessity of restating it. Mr. 
Stirling closed the entire debate on this question with one 
of the finest speeches in the Convention,* his aim being to 
vindicate the position of the majority, not only by uphold- 
ing the doctrine of absolute national sovereignty, but by 
stating that the " paramount allegiance " set forth in the 
article as reported was merely an old and commonly recog- 
nized principle of government restated, perhaps in a novel 
form, but given in this way in order to meet the questions 
as to its very being which had been raised during the last 
few years in consequence of the momentous events that 
had happened. The declaration of this principle should 
be placed in the " Declaration of Rights " since the relation 
of the person to the National Government was one of the 
dearest rights pertaining to the individual. The majority 
tenaciously held to the article as reported, and would take 

"" Deb., i, 273-92. " Proc., 144-5. " Deb., i, 521-32. 

62 The Maryland Constitution of 1864. [408 

nothing less, for they evidently desired by this action to 
strengthen the hands of the President and put Maryland 
in the position of officially endorsing his administration. 91 
This political consideration should not be forgotten, es- 
pecially as the contemporary excitement incident to Mr. 
Lincoln's candidacy for a second term may have influ- 
enced the Convention. The result was, that Mr. Clarke's 
amendment was voted down, and also several others by 
means of which the minority attempted to mitigate the 
force of the article," and this latter was finally adopted 
on June 16 by the party vote of 53 to 32." 

The third in importance and last of the new articles in- 
corporated in the " Declaration of Rights " was that in- 
troduced by Mr. Abbott of Baltimore City on June n, and 
adopted without debate on July 7, after a slight change of 
phraseology." It declared " That we hold it to be self- 
evident that all men are created equally free ; that they are 
endowed by their creator with certain unalienable rights, 
among which are life, liberty, the enjoyment of the pro- 
ceeds of their own labor and the pursuit of happiness/' It 
was merely a broad statement of the principle involved in 
the article abolishing slavery. 

Another very interesting change was that made in Ar- 
ticle 2, which declares the " unalienable right " of the people 
to " alter, reform or abolish " the form of government 
which originates from them. The words contained in the 
old Constitution of 1850-1 K which limited this popular 
right to the " mode prescribed " in that document were 
omitted. This action was not taken on strict party lines, 
for although nearly all the members opposing it were of 
the minority, yet a number of them rose above the rigid 

91 See Proc., 209, for an order introduced by Mr. Hatch, of Bal- 
timore City, with this special end in view. 

92 Proc., 150-1, 199-201. 

93 Proc., 204. (Article 5 in the Constitution.) 
Proc., 173, 233-4. (Article I in Constitution.) 

95 Declaration of Rights, Article I. 

409] The Maryland Constitution of 1864. 63 

constructionism so prevalent among the members of this 
last-named faction, and voted in the affirmative. 90 The 
change was evidently the direct result of an argument 
which had been most skilfully used against calling a Con- 
vention during the campaign of the preceding spring, 97 and 
was based not only on the above-mentioned clause of the 
" Declaration of Rights " of the old Constitution, but on 
Article n of that instrument which provided that "It 
shall be the duty of the Legislature, at its first session 
immediately succeeding the returns of every census of the 
United States, hereafter taken, to pass a law for ascertain- 
ing, at the next general election of Delegates, the sense of 
the people of Maryland in regard to the calling a Conven- 
tion for altering the Constitution." As we know, the 
Legislature of 1861-2 had failed to do this, 98 hence it was 
held by some that the succeeding body of 1864 had ex- 
ceeded its authority in framing the Convention Bill, and 
that the Bill was unconstitutional. The advocates of the 
measure had at once answered the argument by taking 
their stand on the absolute sovereignty of the people, and 
their right of revolution as a last resort, urging that the 
acceptance of the Convention Bill at the election was suffi- 
cient to make it the supreme law of the land. This was 
the line of argument followed during the debate on the 
revision question in the Convention, it being stated in addi- 
tion that it might with equal ease be proved that the Con- 
stitutional Convention of 1850-1 had been revolutionary, 
as it had not been called according to the provisions of the 
Constitution of 1776." 

The other facts of importance which should be men- 
tioned in connection with the " Declaration of Rights " as 
adopted are, first of all, that Article 7 still confined the 
right of suffrage to the free white male citizens. Again, 
the general sentiment of the Convention was without re- 

96 Proc., 90, 94-6; DeB., i, 133-46, 149-60. " Deb., i, 134, 390. 
"See page 13. "Deb., i, 140-1, 150-5. 

Ci The Maryland Constitution of 1864. [410 

gard to political lines, largely opposed to any poll-tax, 100 
so the prohibitory clause was retained in Article 15 with 
a slight change of phraseology. 101 Article 22 limited the 
declaration against compulsory evidence to criminal cases 
thereafter, in order to conform to the laws as it stood in the 
Code, by which any party might in any civil case be com- 
pelled in a Court of Common Law, as well as in Equity, 
to give evidence against himself. Article 27 was changed 
to allow forfeiture of estate for treason, a thing heretofore 
not allowed in Maryland for any cause. 101 The minority 
of course opposed this change, Mr. Chambers in particular 
leading in the debate against it, the ground taken being 
that it would be an inhuman and unjust treatment of the 
innocent wife and children of a man convicted. Mr. 
Clarke made an effort to amend the article by having the 
forfeiture of estate only continue during the life of the 
person convicted, but was unsuccessful, 10 * as the majority 
could not leave open this chance for future questioning 
of the various confiscations of " rebel " property. Article 
31 changed the phraseology in regard to quartering sol- 
diers in time of war, by providing that the manner should 
be " prescribed by law," thus corresponding literally with 
the third amendment to the Constitution of the United 
States. The words formerly used had been " as the Leg- 
islature may direct." ' The requirement of a test oath of 
allegiance both to Maryland and the United States, was 
inserted in Article 37, which treated of the tests or quali- 
fications required for office. The minority opposed this. 
An additional change was made in the same article by 
omitting the word " Jews " and allowing all persons, with- 

100 Deb., i. 168-80, 190-201, 217-20. Mr. Jones, of Somerset, 
favored an income tax (Deb., i, 188-9). 
01 Proc., 106-8, 110-4, 123-5. 
102 Article 24 in Constitution of 1850-1. 

03 Proc., 131, 138-41; Deb., i, 239-47, 249-70. 

04 Proc., 158-9; Deb., i, 356-60 (observe the different numbering of 
the articles in the report of the committee, etc.). 

411] The Maryland Constitution of 1864. 65 

out distinction to make a declaration of belief either in the 
Christian religion, or in the existence of God, and in a 
future state of rewards and punishments. 105 Article 40 
added to the provision for the liberty of the press a clause 
making a person responsible for the abuse of this right. 106 
Article 43 declared the encouragement of a judicious sys- 
tem of general education to be among the duties of the 
Legislature, and Article 45 prohibited only the Legislature 
from altering the Constitution except in the manner pre- 
scribed or directed. This left to the people the inalienable 
right of changing their form of government and thus con- 
formed to Article 2, as modified in the manner stated 
above. 107 

To sum up, it should be said that the changes in the 
" Declaration of Rights," as given above, show first a de- 
cided movement toward an increase in the civil liberty of 
the individual by the abolition of slavery, the vesting of 
final sovereignty in the people, and the broadening of the 
religious test in an oath or affirmation. Secondly, there 
was a somewhat counter tendency toward strong centrali- 
zation of power in the National Government, and also an 
entire submission to and approval of the war policy of 
President Lincoln. 

The Constitution itself, in establishing a form of govern- 
ment for the State of Maryland as contrasted with the pre- 
vious document of 1850-1, shows a number of interesting 
changes, which were in part the immediate results of the 
Civil War, and in part caused by a growing spirit of pro- 
gress in the state, which was at times reflected in the Con- 
vention, where provisions were suggested which would 
have been years in advance of the average opinion of the 
people. In considering these various changes the order of 

00 Proc., 165-6; Deb., i, 371-82. 

l(X5 Proc., 167-9, 172-3; Deb., i, 393-400 (articles "39" and "45 
[46] combined into Article " 40 " Proc., 434). 
10T See pp. 62-63. 

66 The Maryland Constitution of 1864. [412 

the Constitution will be followed in part, and in part a 
grouping by subjects. 101 

Article i, on the Elective Franchise, largely followed 
the plan of the corresponding article in the preceding Con- 
stitution. It also contained one of the best of the new 
provisions, that requiring the General Assembly to pro- 
vide for an uniform registration of the names of the voters 
of the state, a thing as yet unknown in Maryland. This 
registration was made the evidence of the qualification of 
citizens to vote at all elections. 109 In relation to bribery, 
section 5 of the same article added to the former prohibi- 
tive provision a clause disfranchising a person guilty of 
fraud in procuring for himself or any other person a nomi- 
nation for any office. This was the result of a motion by 
Mr. Stockbridge, who desired to incorporate in addition 
the application of this provision to primary meetings and 
nominating conventions, an advanced reform movement 
only beginning to be considered at the present day. The 
Convention voted it down as impracticable." 

The oaths of allegiance for voters and public officials as 
contained in this article were perhaps the most unpopular 
feature of the Constitution, and did more to cause its re- 
luctant acceptance by the state and its final abrogation in 
1867 m than any other one thing in connection with it. 
They were of course the direct outcome of the war and 
only applicable to the conditions arising at that time. 
General Schenck's much-discussed order governing the 
elections of 1863, the various invasions and raids into 

* The entire new Constitution, as adopted, may be found in 
Proc., 721-70. 

10 *Proc., 434, 513, 686; Deb., iii, 1784, This provision was carried 
out by the Legislature of 1865. See Steiner, " Citizenship and 
Suffrage in Maryland," pp. 47-8. 

110 Proc., 510-1; Deb., ii, 1381-3. Mr. Miller had desired to make 
voting compulsory by an article in the " Declaration of Rights," 
Proc., 1 1 1-2. 

u The present Constitution of Maryland was formed in that 

413] The Maryland Constitution of 1864. 67 

Maryland by Southern forces during the last two years, 
and the many instances of divided sympathy consequent 
upon the position of Maryland as a border state; all these 
facts may be considered as exerting a strong influence 
toward this radical action on the part of the majority mem- 
bers. The report handed in by the four Union members 
of the Committee on Elective Franchise m had contained 
a test oath as a qualification for office, which was after- 
wards amended to make it more stringent. A minority 
report handed in by Messrs. Brown of Queen Anne's and 
Marbury of Prince George's 113 had contained merely an 
oath of allegiance to the Constitution of the United States 
and the Constitution and laws of Maryland. Neither re- 
port contained a test oath for voters. Mr. Stirling on 
August ii offered the amendments which were finally 
adopted as section 4, and prescribed the disqualifications 
arising under the war, and the additional oath for voters." 4 
The provision, which was quite long, forever disfranchised 
and prohibited from holding office all those who had at 
any time been in armed hostility to the United States or 
in any manner " in the service of the so-called Confederate 
States of America," who had voluntarily gone South for 
that purpose, had given aid, comfort, countenance or sup- 
port to the enemies of the United States or adhered to 
them by contributing to them, or " unlawfully sending 
within the lines of such enemies money or goods or letters 
or information," or " disloyally held communication with 
them." In addition there were included under the ban all 
those who had " advised any person to enter the service 
of the said enemies, or aided any person so to enter or who 
[had] by any open word or deed declared [their] adhesion 
to the cause of the enemies of the United States, or [their] 
desire for the triumph of said enemies over the arms of the 
United States." These disqualifications could be removed 
only by service in the military forces of the Union, 

112 Proc., 431-3- m Proc., 449-51. " 4 Proc., 463-8. 

68 The Maryland Constitution of 1864. [414 

or by an act of the General Assembly passed by a two- 
thirds vote of all the members elected to each house, and 
restoring the offender to his full rights of citizenship. 
The " Officers of Registration " and " Judges of Election " 
were " carefully to exclude from voting, or being regis- 
tered, all persons so as above disqualified." The hands of 
these officials were strengthened by the additional clause 
that "the taking of such oath shall not be deemed con- 
clusive evidence of the right of such person to vote," thus 
leaving to them individually the final judgment in the 
matter. In order to cover the first election under the 
Constitution and the subsequent registration for which the 
Legislature was to provide, the above-given oath was re- 
quired of all voters and the Judges of Election must state 
in the returns that this provision had been complied with." 5 
Mr. Berry of Prince George's attempted to insert a clause 
limiting the imposition of the oath to cases where there 
was a challenge " by a legally qualified voter, resident of 
said district or ward in which the vote is offered," but it 
was voted down 12 yeas to 47 nays. 119 A similar fate had 
befallen the attempt of Mr. Davis of Charles to declare in 
the first section of the same article that " all persons 
[should] be considered loyal who [had] not been con- 
victed in some Court of Law of disloyalty." UT 

Mr. Stirling also offered the provision which was adopt- 
ed, with several amendments, and contained an equally 
stringent oath of office. 1 " It required of " every person 
elected or appointed " to any office under the Constitution 
or laws pursuant thereto, that he should not only swear 
allegiance to the Constitution, Laws, and Government of 
the United States " as the supreme law of the land, any 
law or ordinance of this or any state, to the contrary, not- 
withstanding," and that he had not used any unfair meas- 

115 Mr. Stirling distinctly stated this object. Deb., ii, 1272. 

118 Proc., 466-7. See Nelson, " Baltimore," p. 573. 

UT Proc., 462-3. 

* Proc., 472-4, 505-8 (Section 7 in Constitution). 

415] The Maryland Constitution of 1864. 69 

ures, of bribery or illegal voting, but in addition that he 
had " never directly or indirectly by word, act, or deed, 
given any aid, comfort or encouragement to those in re- 
bellion against the United States or lawful authorities, there- 
of," but that he had been truly and loyally on the Union 
side. Further, that he would to the best of his abilities 
protect and defend the Union and " at all times discounte- 
nance and oppose all political combinations having for 
their object such dissolution or destruction." Mr. Scott 
of Cecil had offered an amendment to the original report 
requiring the officer-elect to swear among other extrava- 
gant things that he had " uniformly and at all times de- 
nounced [those in rebellion] not only as rebels against 
and traitors to their country, but as enemies of the hu- 
man race " ! However, Mr. Stirling's amendment was the 
one which superseded this latter."' An additional pro- 
vision offered by Mr. Stirling was adopted, which required 
all those in office under the preceding Constitution to take 
the above oath of office within thirty days after the new 
instrument had gone into effect. The office should be ipso 
facto vacant if the incumbent should fail to fulfill this con- 
dition. 110 

As was to be expected, the minority stoutly opposed 
these oaths or tests, declaring them to be especially di- 
rected against the large number of true Union men who 
opposed the " usurpations " of the National Government. 121 
An unsuccessful series of bitter and sarcastic amendments 
was offered by Mr. Jones of Somerset putting the observ- 
ance of the " Ten Commandments " in the test oath, and 
the affirmation that the person had " faithfully supported 
the Constitution of the United States against all violations 
of the same whether in the Northern or Southern States, 
or in any department of the Government of the United 
States, civil or military." 122 A more serious attempt to 

119 Proc., 422-4, 505-8. " Proc., 512-3. 

121 Deb., ii, 1334- 122 Proc., 449-5OO. 

70 The Maryland Constitution of 1864. [416 

provide that the prescribed oaths be in force only till the 
end of the war was voted down, 47 to 23."* 

The debate on all these questions was more bitter than 
at any other time during the Convention, with perhaps the 
exception of the consideration of the soldiers' vote and of 
the mode of submitting the new Constitution to the 
people." 4 The minority held that the oaths largely tended 
to continue after the war had ceased the conditions co-ex- 
isting with it, and would go far to prevent the subsequent 
reconciliation necessary to the peace and prosperity of a 
reunited country. They also rightfully objected that it 
gave far too much power to the Judges of Election, and 
offered every opportunity for unfairness and abuse. 118 

Another strong point was that it was eminently im- 
proper to compel the entire support of the National Gov- 
ernment, a requirement especially irritating to many who 
held that the coercion of the South was in violation of the 
Constitution of the United States."" 

The majority held that there was nothing unusual in 
the oaths when the circumstances in which the state was 
placed were considered, and that no one could faithfully, 
zealously, and honestly serve the State of Maryland as an 
officer, who could not undergo the prescribed tests." 7 

We of this day, while admitting the force of the argu- 
ments of both sides in the Convention, must necessarily 
take a middle course in forming our judgment, and con- 
clude that the majority were right in providing test oaths 
of some sort as a war measure, but that they made a great 
mistake in the extent of their requirements and the method 
of enforcing them. 

Other points of interest to be noted in connection with 
the treatment of the franchise are that it was again in this 
connection restricted to white male citizens, and that there 
were unsuccessful attempts to allow ex-convicts to vote 

^Proc., 511-2. " 4 Deb., ii, 1262-89, 1299-1303. 1330-81. 

Deb., ii, 1266, 1335. " Deb., ii, 1359. m Deb, ii, 1358-9. 

417] The Maryland Constitution of 1864. 71 

after a certain period of good behavior, or consequent 
upon legislative action. 128 The provision which required 
the General Assembly to provide by law for taking the 
votes of soldiers in the army of the United States serving 
in the field 129 will be considered later, as the main oppo- 
sition centered around this entirely new provision when it 
was applied to the vote on the ratification of the Consti- 
tution. 180 

The new instrument showed a number of changes in 
regard to state officials, and the positions they occupied. 
In the Executive Department the old " Gubernatorial Dis- 
tricts," from each of which the Governor was chosen in 
turn," 1 were abolished, thus doing away with a useless and 
cumbersome institution. The salary of the chief executive 
was raised from $3600 to $4000."* A proposal to give him 
the veto power was speedily tabled by the Convention, 
which considered this an unnecessary departure from the 
custom of the past. 1 * As the judiciary and most of the 
other state officers were to be elected his appointing power 
was small. 

The office of Lieutenant-Governor was created an en- 
tirely new departure for the State of Maryland. The same 
qualifications and same manner and time of election were 
prescribed as in the case of the Governor. This new 
officer was to preside over the Senate with the right of a 
casting vote in case of a tie, and was also to succeed to the 
office of the Executive, in case of the " death, resignation, 
removal from the state, or other disqualification " of the 
latter. He was to receive no salary but the same compensa- 
tion as that allowed the Speaker of the House of Delegates 
during the sessions of the General Assembly. 184 The creation 
of this office was an idea which originated in the Conven- 

* Proc., 474-5. 12> Art. i, sec. 2. uo See pages 88-90. 

181 There were three districts Eastern Shore, Western Shore, 
and western part of the state. See Cons. 1850-1, Art. ii, sec. 5. 
132 Article ii, section 22. m Deb., ii, 898. m Art. ii, sec. 6-10. 

72 The Maryland Constitution of 1864. [418 

tion, and had previously been little discussed in the State, 
if at all. 1 * 8 The minority members of the Committee on 
the Executive Department had brought in a report against 
this new office 18 and although Mr. Smith of Carroll and a 
few others of the majority members joined with the other 
political faction in opposing the office as unnecessary, the 
measure passed without much difficulty or delay. 117 Those 
favoring it brought forth as the reasons for their action the 
fact that the provision gave an additional popular feature 
to the Constitution by making the people doubly secure of 
the choice of their chief executive, and brought the Gov- 
ernment of Maryland in line with those of a majority of the 
states of the Union. 1 " A move to abolish the office of 
Secretary of State and combine its duties with those of 
the Lieutenant-Governor was quickly defeated. 1 " 

Another new state office created was that of Attorney- 
General, which also was to a great extent an idea of the 
Convention members. 140 This office had existed before 
1851, but was abolished by the Constitution of that year. 141 
The reason for that action, as given by Judge Chambers, 141 
who had been a member of the Convention which framed 
the instrument, was not from any belief that the office was 
unnecessary, but purely from personal considerations, hav- 
ing relation to an individual who it was supposed was 
going to obtain the office. There was now practically no 
opposition in the Convention to its re-establishment, and 
it was provided 14i that the Attorney-General be elected by 
the people for a term of four years, that to be eligible he 
must have resided and practiced law in the state for at 
least seven years next preceding his election, and must 
perform the usual duties required of such an officer. The 
salary was $2500 a year. There was no change of any 

m Authority of Mr. Joseph M. Gushing. M Proc., 448-9. 

187 Proc., 492-3. 1W Deb., ii, 1317-9. "* Proc., 493. 

140 Authority of Mr. Joseph M. Gushing. 

141 Art. 3, section 32. 10 Deb., iii, 1463. ia Art. v, sees. 1-6. 

419] The Maryland Constitution of 1864. 73 

consequence in regard to the provisions for State's Attor- 
neys. 144 In regard to the Treasury Department 143 it is 
hardly necessary to say more than that the provisions of 
the old Constitution were closely followed with only a 
few minor changes in phraseology. As before, the Comp- 
troller was to be elected by popular vote for a term of two 
years, and at each session of the Legislature the State 
Treasurer was to be chosen by joint ballot, to hold his 
office for a like term. The salary of both officers remained 
at $2500 a year. 

The Commissioner of the Land Office was now to re- 
ceive the fixed salary of $2000 a year, and pay into the 
Treasury all fees received, instead of retaining them as his 
compensation according to the former provision. 140 There 
was some question as to the desirability of abolishing this 
office, but it was finally retained as a necessary part of 
the administration. 147 The salary of the State Librarian 
was increased from $1000 to $1500, and the Legislature 
was to pass no law whereby he was to receive additional 
compensation. 148 This action was intended to give that 
officer an adequate salary and abolish extra Legislative 
appropriations for certain duties performed. 14 * The " Board 
of Public Works " was entirely reorganized. The old 
provision for electing four " Commissioners " from a like 
number of districts into which the state was divided 18 was 
abolished, and the board now consisted of the Governor, 
the Comptroller and the Treasurer, who were to receive 
no additional compensation for the performance of their 
duties in this connection. This board superintended the 
interests of the state in internal improvement. 181 

The other state officials will be mentioned in connection 
with the more important departments of administration 
with which they were connected. 

144 Art. v, sees. 7-11. 145 Art. vi. 14S Art. vii, sec. 3. 

47 Deb., ii, 1090-4. 148 Art. viii, sec. 4. 148 Deb., ii, 1101-9. 
150 Cons. 1850-1, Art. vii, sees. 1-3. 151 Art. vii, sees. 1-2. 

74: The Maryland Constitution of 1864. [420 

The article dealing with the Legislative Department 
(III) showed a number of changes, most of them in the 
line of improvement. In this connection, the most im- 
portant question of all was that of basis of representation, 
concerning which there had been much complaint through- 
out the state, especially on the part of Baltimore City and 
the northern and western counties. In 1851 the prin- 
ciple of representation according to population had been 
adopted for the first time, 152 but with the restriction that 
Baltimore City should have only four more members than 
the largest county. At the same time the entire popula- 
tion, white and black, slave and free, was made the basis. 
The above-mentioned parts of the state justly condemned 
all this, which gave to the southern, slave-holding counties 
an unfair measure of power and the practical domination 
of the state."" As can be well imagined, the majority 
members of the Convention, particularly those from Balti- 
more City, were determined to change this system en- 
tirely. The minority, coming altogether from the more- 
favored section of the state, naturally fought the move 
with all their might, particularly as they would be helped 
in some measure by the county members of the majority, 
who were evidently unwilling to have the basis placed en- 
tirely on population, for the reason that in this case Balti- 
more City would be given too much power for their liking. 
Under these circumstances, the compromise was effected 
according to which the basis of population was applied by 
an artificial rule, limiting Baltimore City and the larger 
counties, but with the result of allowing the city a larger 
representation than heretofore. The entire majority, how- 
ever, joined together in a shrewd political move and in- 
creased the reduction of the political power of the southern 

1M A constitutional amendment in 1837 had only partially incor- 
porated this principle. 

151 See Nelson, " Baltimore," p. 157, for a quotation on this sub- 
ject from a speech of Hon. Henry Winter Davis; also see news- 
papers of 1863-4. 

421] The Maryland Constitution of 1864. 75 

counties consequent upon the above, by making the white 
population of the state the exclusive basis of representa- 
tion in the House of Delegates. 

Early in the session of the Convention Mr. Clarke offer- 
ed resolutions to the effect that it was " inexpedient .... 
to adopt a system of representation based exclusively upon 
population," and recommending instead that this principle 
be applied to the counties, and then four more delegates 
be given to Baltimore City than would fall to the largest 
county. A plan of apportionment also submitted by Mr. 
Clarke divided the county population by seven thousand, 
giving Baltimore County, the most populous, a represen- 
tation of eight, and consequently twelve to the city, the 
entire number of delegates to be eighty. Failing this 
plan, if the whole state was to be represented according to 
population, districts were to be substituted in Baltimore 
City. These resolutions were referred to the Committee 
on Representation. 154 Mr. Belt submitted the proposition 
that the entire state be divided into electoral districts, and 
this was the ground on which the minority took its stand. 1 " 

Mr. Abbott of Baltimore City on May 27 made the re- 
port of the six Union members of the Committee on Rep- 
resentation, which furnished the foundation of the com- 
promise plan that was finally adopted as above stated. 1 " 
The three Democratic members handed in a minority re- 
port embodying Mr. Clarke's plan of giving the counties 
representation according to population, and Baltimore 
City four more delegates than the largest county." 1 This 
was voted down by the party vote of 26 yeas to 46 nays. 158 

The minority, as already stated, now skilfully took its 
stand on the electoral district plan, which would tend to 
slightly diminish the overwhelming party influence of the 
larger counties and Baltimore City in particular, by afford- 
ing opportunity for the minor political party (at this time 

26-7, 31-3- l5I Proc., 88. IM Proc., 120-1. 

'"Proc., 122-3. ^Proc., 351. 

76 The Maryland Constitution of 1864. [422 

of course the Democratic) to secure the election of repre- 
sentatives from those districts in which it might be strong, 
whereas it would perhaps be defeated entirely if the vote 
of the whole county or city were thrown together. They 
urged as their main argument in favor of this method that 
every voter throughout the state would thus cast his ballot 
for one delegate, while under the other plan the citizen in 
the smaller counties might vote for only one or two dele- 
gates, and the citizen in Baltimore City or a larger county 
for eight or ten, or perhaps more. This second plan was 
lost, 14 " and the minority now turned their attention to les- 
sening the representation of Baltimore City, and increas- 
ing that of the smaller counties as much as possible. 

As finally adopted, 1 " the representation was according 
to the following plan: 161 Baltimore was divided into three 
legislative districts, and each one of these districts, 1 " as 
well as each county of the state, was to be represented by 
one Senator, elected by the people for the term of four 
years, subject to a classification by which the election of 
one-half of the entire number should occur every two 
years. The apportionment of the Delegates was as fol- 
lows: for every five thousand persons or fractional part 
over one-half, one Delegate to be chosen until the number 
for each county and legislative district of Baltimore City 
should reach five, above that number one delegate for 
every twenty thousand persons or larger fractional part 
thereof, and after this, one for every eighty thousand per- 
sons or larger fractional part. Until the next census was 
taken the representation was to be as specifically provided 
in the Constitution, which gave Baltimore City altogether 
eighteen delegates, 18 " and sixty-two delegates to the coun- 
ties. A sharp struggle occurred on the representation of 

" Proc., 352, 360-1. Proc., 352, 362, 639-42. 

181 Art. iii, sees. 2-4, 7. 

1(0 Baltimore had hitherto only one senator and ten delegates. 
The committee report had provided twenty-one delegates for the 
city (Proc., 120-1). 1<B See note, preceding page. 

423] The Maryland Constitution of 1864. 77 

Baltimore and Kent counties. The latter county fell only 
153 short of the necessary population required for two 
delegates, 164 and the former claimed an additional delegate 
for the reason that its population of 46,722 placed it within 
the arbitrary twenty-thousand rule, so that it had only six 
delegates, one more than Allegany for instance, which had 
19,507 population, less than half of that of Baltimore 
County. It was finally decided near the close of the Con- 
vention to give Kent the extra delegate, but Baltimore 
County was held down to the letter of the rule adopted. 105 

It is interesting to note that throughout the considera- 
tion of this question the members of the majority made 
comparatively few speeches, and even then made no seri- 
ous attempt to answer the extensive arguments brought 
forth by the minority. 1 " 8 These latter took the ground 
that their opponents were attempting to deprive the south- 
ern counties of their proper political influence, 187 to give 
Baltimore City the position of three counties, 188 and that 
as soon as slavery was abolished even a three-fifths rule 
held no longer, but the whole population became the joint 
basis of apportionment. 10 " It was all in vain, however, 
for now they only succeeded in procuring the additional 
delegate for Kent. The majority were evidently not going 
to lose this opportunity of settling old scores, and in addi- 
tion might have urged the old excuse that it was neces- 
sary to strengthen the supporters of the National Adminis- 
tration in Maryland by weakening the power of their op- 

The article on the Legislative Department contained 
numerous other changes, mostly in the direction of lim- 
iting the power of the General Assembly to act in certain 
cases. 170 Taking the most important in the order in which 

184 Deb., iii, 1658. m Proc., 639-42; Deb., iii, 1655-76. 

89 Deb., ii, 1032-59, 1060-78. 18T Deb., ii, 1034. 

88 Deb., ii, 1038. l69 Deb., ii, 1041. 

170 Might this not have been a result of the struggle over the 
"Frederick" Legislature of 1861? 

78 The Maryland Constitution of 1864. [424 

they occur, it will first of all be noticed that the old pro- 
vision prohibiting clergymen from accepting seats in the 
legislature was omitted, although Judge Chambers 
strongly protested against this action on conservative 
grounds." 1 

The regular sessions of the General Assembly had here- 
tofore closed on the loth of March, now they were unlim- 
ited, though special sessions could only continue thirty 
days. The former pay of $4 per day was raised to $5 for 
all sessions, but no member could receive more than $400 
for the regular session. This was of course a distinct im- 
provement on the old provision. 

A number of the restrictions mentioned above were 
contained in a section (32) which prohibited the Legisla- 
ture from passing local or special laws in fourteen different 
cases, of which those relating to assessment and collec- 
tion of taxes, to interest on money, those providing for 
the sale of real estate belonging to minors, giving effect 
to informal or invalid deeds or wills, those granting di- 
vorces, and those " establishing, locating or affecting the 
construction of roads, and the repairing or building of 
bridges " were the most important. Also the provisions 
were continued which prohibited the giving of the credit 
of the state to aid in works of internal improvement, and 
that unsecured debts were not to be contracted, except on 
the authority of the General Assembly to meet deficiencies 
to the extent of $50,000, or to any amount necessary for 
the defense of the state. 

It was provided that laws were to be passed requiring 
the stringent oath of allegiance to be taken by the " presi- 
dent, directors, trustees, or agents of corporations created 
or authorized by the laws of this state, teachers or super- 
intendents of public schools, colleges, or other institutions 
of learning; attorneys-at-law, jurors, and such other per- 
sons as the General Assembly shall from time to time pre- 
scribe." 1 " 

m Deb., ii, 790-6. 17a Art. iii, sec. 47. 

425] The Maryland Constitution of 1864. 79 

In regard to internal improvements it should be noted 
that there was a strong sentiment in favor of selling the 
state's interest in them. The report of the Committee on 
the Legislative Department had contained a section pro- 
viding that the General Assembly should take the neces- 
sary steps to dispose of the above, and use the proceeds 
for the payment of the public debt of the state, any sur- 
plus to be held as a permanent fund for the support of 
education. 178 When this section came up for consideration 
in the Convention, the variety of plans and ideas presented 
in regard to it, and the utter lack of any definite policy or 
party lines among the members, show that the subject was 
largely a new one. It had been raised by several indi- 
viduals who brought before the committee the argument 
that arrangements might be made by which the Chesa- 
peake and Ohio Canal, the unproductive state stock in 
which was the special object of attack, might be leased to 
the preferred creditors, many of them citizens of Mont- 
gomery, Frederick, Washington and Allegany counties, 
who as citizens were held to have a double interest, both 
in the usefulness of that particular work, and in its being 
remunerative to the state." 4 

The question of the sale seemed to come as a surprise 
to the Convention, and though a large number expressed 
themselves as favorable to the move, yet so many plans 
and amendments of various sorts were offered that the 
subject became involved in a veritable sea of confusion. 
The state owned large amounts of both productive and un- 
productive stocks, and the sentiment was entirely divided 
as to whether certain parts or all of these should be dis- 
posed of. The great fear seemed to be, that the Balti- 
more and Ohio Railroad would gain control of the Chesa- 
peake and Ohio Canal, and use it to discriminate in rates 
against the western part of the state, and also that the 
sale would offer a rich field for bribery and political job- 

178 Proc., 193. " Deb., ii, 815. 

80 The Maryland Constitution of 1864. [426 

bing. The uncertain state of the " money market " in 
time of war was a potent reason urged against any action 
in the matter. 178 The whole question was finally referred 
to a special committee of nine on July 27, with instructions 
to report two days later. 17 * A majority of six of the com- 
mittee reported in favor of the sale of certain interests 
according to a given method, and the reference of the sub- 
ject of the sale of the remainder to a popular vote. A 
minority of four members of the committee reported 
against any provision for the sale of public works, urging 
that at present it was inexpedient, as it would tend to 
dissatisfy a large part of the people, and as it was doubtful 
if any plan could command a majority of the votes of the 
Convention. A number of the members had come to this 
more conservative view, owing to the lack of any definite 
plan as yet, though Mr. Thomas of Baltimore City, who 
came originally from Allegany county, vigorously opposed 
the move as detrimental to the western part of the state. 1 " 
After much discussion and seemingly endless amend- 
ments, 178 provisions were finally adopted 11 * which author- 
ized the Governor, Comptroller and State Treasurer con- 
jointly, or any two of them, to exchange the state's inter- 
est in the Baltimore and Ohio Railroad " for an equal 
amount of bonds or registered debt now owing by the 
state/' and also to sell the interests in the other works of 
internal improvement or banking corporations, but subject 
to such regulations and conditions as the General As- 
sembly might prescribe. There were two provisos to the 
above, the first reserving from sale the interest of the 
state in the Washington Branch of the Baltimore and Ohio 
Railroad, and the second requiring a ratification by the 
Legislature of the sale of the interests in the Chesapeake 

175 Deb., ii, 814-5, 903, 908. 

111 Proc., 346-9. l77 Deb., ii, 966-70. 

17> Proc., 298-304, 315-6, 321-2, 340-9, 391-5, 398-404: Deb., ii, 
814-9, 872-3, 809-913, 962-74, 1110-25. 1145-53- 

79 Yeas 39, nays 25 (Proc., 402-3). See Art. iii, sees. 52-3. 

427] The Maryland Constitution of 1864. 81 

and Ohio Canal, the Chesapeake and Delaware Canal, and 
the Susquehanna and Tidewater Canal Companies. In ad- 
dition, the Legislature was to provide, before the Chesa- 
peake and Ohio Canal could be sold, such laws as should 
be necessary to authorize the counties of Allegany, Wash- 
ington, Frederick and Montgomery or any one of them 
" to create a debt by the issue of bonds or otherwise, so 
as to enable them, or any of them, to become the pur- 
chasers of said interest." All party lines were entirely ob- 
literated during the consideration of the above, and the 
members voted as individuals. 

Another section which was incorporated in this same 
Legislative Article 18 gave the General Assembly " power 
to accept the cession of any territory contiguous to this 
state from the states of Virginia and West Virginia, or 
from the United States, with the consent of Congress, and 
of the inhabitants of such ceded territory," and further 
empowered the Legislature to enact the necessary laws to 
divide such ceded land into counties, and otherwise make 
it an integral part of the state. It seems that after West 
Virginia had seceded from Virginia, there was a widespread 
belief in Maryland that perhaps portions of this new state 
or even the whole of it might be induced to consolidate 
with Maryland. Covetous eyes had also been cast on 
Loudoun County, Virginia, and also on the Eastern Shore 
of that state. The provision was in fond anticipation of 
events which never occurred, but was sufficient to call forth 
vigorous, and, as usual, vain opposition on the part of the 
minority, who " protested against the enormity which had 
been committed in the attempted and pretended erection of 
this State of West Virginia out of the limits of the State of 
Virginia." The debate was not of much importance how- 
ever, and the usual party vote soon carried the provision 
through. 181 

In concluding the discussion of the various provisions 

180 Section 48. 181 Proc., 133, 194, 209; Deb., ii, 866-8, 873-6. 

82 The Maryland Constitution of 1864. [428 

incorporated in the article on the Legislative Department, 
it is interesting to note that during its consideration in 
the Convention two movements developed which, though 
unsuccessful, show that certain members were far in ad- 
vance of the thought of that day in their views on mone- 
tary questions. One movement was an attack on state 
banks led by Mr. Gushing of Baltimore City, one of the 
most progressive members of the Convention, and the 
other an effort to abolish the rigid restriction of the usury 
laws. Of this latter, Mr. Belt of Prince George's was the 
leading advocate. 

Mr. Gushing desired to have the old provision, which 
provided for the limited liability of stockholders, inspec- 
tion of banks, etc., 1 "* so amended as to read " The Gen- 
eral Assembly shall grant no charter for banking purposes, 
or renew any banking corporation now in existence." He 
stated that he desired the question of currency and note 
issues to be fairly met, and favored the support by Mary- 
land of Secretary of the Treasury Chase's National Bank 
plan, which provided for much more uniformity in the 
banking institutions of the country and in their note issues. 
It should be noticed that this was an anticipation, by at 
least a year, of the action of the Federal Government 
which laid the prohibitory tax of ten per cent on the note 
issues of state banks, and drove so many of the latter to 
reincorporation under national laws. Mr. Cushing's plan 
received little support, and was rather treated with indif- 
ference, so that gentleman withdrew his motion. 1 * 8 

Early in the session, on motion of Mr. Belt, a special 
committee of five was appointed to consider and report 
upon interest and usury laws. 1 ** This committee reported 
in favor of a provision fixing the legal rate of interest at 
six per centum per annum, except in cases where a differ- 
ent rate might be agreed upon between contracting par- 

183 Art. iii, sec. 45 (Cons, of 1850-1). 

181 Deb., ii, 835-45. 1M Proc., 18. 

429] The Maryland Constitution of 1864. 83 

ties, the rate agreed on or contracted for being recover- 
able in all cases of private contract. 183 

The rate of interest prescribed in the old Constitution 
was six per centum, 1 * 1 and the effort of Mr. Belt and the 
more progressive members of the Convention who sup- 
ported him without regard to party, was to have money 
treated like any other commodity subject to the market 
price. A practical turn was given to the argument by the 
statement that the New York rate of seven per centum 
was drawing from Maryland its available capital, and that 
the provision reported would of course tend to remedy 
this. Mr. Belt was ably seconded by Mr. Cushing, Mr. 
Negley and others, party lines being again disregarded, 
but Judge Chambers, who was usually ultra-conservative, 
Mr. Sands of Howard, and numerous others opposed the 
provision with the old arguments of " protection of the 
laboring man," the necessity of " restraining the appetite 
of the money-lender," and further reasons of the like kind. 
Mr. Belt delayed final action for some time in the hope 
that he might obtain from the people, especially from the 
business men of Baltimore, petitions strong enough to in- 
fluence sufficient votes in the Convention to carry his 
measure through, 1 * 7 but it was all to no purpose. He was 
rewarded by only one petition, that from the Baltimore 
Corn and Flour Exchange, 188 and the old restriction was 
reenacted. Although by a further effort he succeeded in 
having this action reconsidered two days before the Con- 
vention adjourned, the conservative sentiment was again 
too strong for him, and the result was exactly the same as 
before. 18 " 

Another progressive change of an entirely different 
character which was advocated, and which suffered a like 

185 Proc., 520-1. 1M Cons. 1850-1, Art. iii, sec. 49. 

187 Authority of Mr. Joseph M. Cushing. l88 Deb., iii, 1685. 
189 Proc., 693-700. See also Deb., iii, 1476-81, 1482-1509, 1811-26; 
Frederick " Examiner," Aug. 31, 1864. 

84 The Maryland Constitution of 1864. [430 

fate, was the strong effort to provide for an appointed ju- 
diciary. Mr. Stockbridge was the leading advocate of this 
plan, and the Judiciary Committee, of which he was the 
chairman, reported a system in conformity with these 
ideas. 1 " He was supported in this move by the more pro- 
gressive members of both sides, but the test vote, which 
was taken on the question after very little debate, showed 
a vote of 51 to 19 in favor of an elective system, 191 as had 
been provided in the Constitution of 1850-1. The old ar- 
guments of right of choice of the people, and too much 
power given to the Governor if he was allowed to appoint 
the judiciary, proved too strong for Mr. Stockbridge and 
his supporters. 1 ". 

There had been some complaint in the state that the 
courts did not sufficiently expedite business, 1 " and in order 
to relieve this and provide for speedy justice in all cases, 
the numbers of courts and Judges were generally in- 
creased, and their jurisdiction was more clearly defined. 
A decided improvement was introduced by raising the sal- 
aries of Judges, though not to the extent that the commit- 
tee report had provided. The term of office was increased 
from ten to fifteen years. Numerous minor changes were 
introduced, but they are largely of legal or professional 
interest, and hence out of the province of this work. 1 * 4 It 
should be mentioned however, that provision was made for 
all the Judges then in office to serve out the terms for 
which they had been elected under the old Constitution. 

The minor legal offices showed some change, as the 
Justices of the Peace were now appointed by the Gover- 
nor, and the Constables by the County Commissioners and 
by the Mayor and City Council of Baltimore. These offi- 
cers were formerly elected by the people. Also, the cum- 
bersome system of electing two Sheriffs, one of whom 

Proc., 415-23. 1M Proc., 514-5. 1W Deb., iii, 1385-93- 

See Frederick " Examiner," July 6, 1864. 
See Article iv of the Constitution as adopted. 

431] The Maryland Constitution of 1864. 85 

was to serve only in case of the death or disqualification of 
the other, 1 " 9 was done away with, and the more common 
sense plan substituted by which only one Sheriff was to 
be elected, and the Governor by appointment to fill any 

We now come to an article which was one of the great- 
est merits of the Constitution. It was entirely new, and 
provided for a state system of education. For years be- 
fore this time numerous attempts had been made at the 
various sessions of the Legislature to inaugurate some 
sort of a general educational system, but for one reason 
or another these attempts had always resulted in failure. 
The sentiment of the members of the Convention was 
practically a unit in favor of provisions of this character, 
and they were backed in this by a large majority of the 
people of the state. Mr. Cushing of Baltimore City, chair- 
man of the Committee on Education, submitted the unani- 
mous report of that committee, 1 * 8 which was finally adopted 
with changes mostly of a minor character. In its final 
form it provided as follows: 1 * 1 within thirty days after the 
ratification of the Constitution by the people, the Gover- 
nor was to appoint, subject to the confirmation of the 
Senate at its first session thereafter, a State Superintendent 
of Public Instruction, the term of office to be four years, 
and the salary $2500 a year, with certain sums for travel- 
ling and incidental expenses which were to be fixed by the 
General Assembly. 

This officer was to report to the General Assembly 
within thirty days after the commencement of its first ses- 
sion under the new Constitution, an uniform system of 
free Public Schools. He was also to perform such other 
duties pertaining to his office as should from time to time 
be prescribed by law. The Governor of the State, the 
Lieutenant-Governor, the Speaker of the House of Dele- 

196 Constitution of 1850-1, Art. iv, sec. 20. 

194 Proc., 372-3. Art. viii. 

86 The Maryland Constitution of 1864. [432 

gates, and the Superintendent of Public Instruction, 
were to form a State Board of Education, the duties 
of which were to be prescribed by the General As- 
sembly. There were to be School Commissioners in each 
county to be appointed by the State Board for a term of 
four years, to the number deemed necessary by the State 
Superintendent. The General Assembly at its first ses- 
sion under the new Constitution, was to provide a uni- 
form system of schools, by which a free school was to be 
kept open in each school district for at least six months 
in each year. In case it failed to do this, the system re- 
ported by the State Superintendent was to become law, 
subject to the provisions of the Constitution and to future 
alteration by the General Assembly. At each regular ses- 
sion of the Legislature, an annual tax of ten cents on the 
hundred dollars was to be levied throughout the state, the 
proceeds of which were to be distributed among the coun- 
ties and the city of Baltimore in proportion to their re- 
spective population between the ages of five and twenty 
years. No additional local taxes were to be levied without 
the consent of the people affected. Further, there was to 
be an additional annual tax of five cents on the hundred 
dollars, the proceeds of which were to be invested until a 
permanent School Fund of six million dollars was formed, 
this Fund to remain inviolate, and the annual interest of 
it disbursed for educational purposes only. 1 * As soon as 
this Fund was formed, the ten cent tax might be discon- 
tinued in whole or in part. 

The Committee on Education had in mind two men for 
the position of State Superintendent of Public Instruction 
Libertus Van Bokkelen of Baltimore County and Wil- 
liam H. Farquhar of Montgomery County, and it was pri- 
vately agreed with Governor Bradford that he was to ap- 
point either one of these men. The School Fund idea 

198 For school funds prior to 1865 see report of House Committee, 
House Journal, 1864, pp. 92-3. 

433] The Maryland Constitution of 1864. 87 

was taken from the school law of the state of Massachu- 
setts, which had a sinking fund, and the remainder of the 
report was elaborated after a consideration of all the 
various state school laws. 199 The report was finally adopt- 
ed without much difficulty, although there was much dis- 
cussion of the amount of tax to be levied, and the amount 
of salary of the State Superintendent. Several members 
also questioned the legality of the provision providing that 
the system reported to the Legislature should go into 
effect in case of the failure of that body to act in the mat- 
ter, but Mr. Gushing and M. Stirling answered this by 
affirming the sovereign power to provide what it pleased, 
which was given to the Convention by the people. 200 . Sev- 
eral of the minority members attempted, in a most narrow 
minded spirit, to prohibit the application of any part of the 
School Fund toward educating the free negro population, 
but were overwhelmingly defeated. 201 

As regards the organic law embodied in the Constitu- 
tion, the only important facts which remain to be noted 
are first, that it was provided that the Legislature might 
under certain conditions organize new counties, and 
second, townships were substituted for election districts 
as the smallest unit of local government, their powers to 
be prescribed by the Legislature. 202 Mr. Stockbridge seems 
to have been largely responsible for this change, his desire 
being to introduce into Maryland, if possible, the New 
England system of " Town Meetings." J Third and last, 
three methods of amending the Constitution were pro- 
vided, 10 * that is to say amendments might be submitted 
to the people after three-fifths of both houses of the Gen- 
eral Assembly had passed them; a convention might be 
called by a two-thirds vote of each house if the people ap- 
proved it at the polls; and finally, in the year 1882 and in 

188 Authority of Mr. Gushing. Mr. Van Bokkelen was appointed 
on November 12, 1864. 

800 Deb., ii, 1201-36, 1241-50. m Proc., 453-6. 

203 Art. x. "'Proc., 33; Deb., i, 65. ^ Art. xi. 

88 The Maryland Constitution of 1864. [434 

every twentieth year thereafter, the question of calling a 
Convention was to be submitted to the people. Thus we 
see that the slow conservative methods provided in the 
old Constitution were done away with, and the final right 
of the people to change their mode of government when- 
ever it pleased them so to do, was fully recognized. 

It should be said, to sum up at this point, that as far as 
the organic law was concerned, the new Constitution was 
a decided advance toward modern methods and systems of 
government, and showed distinct results of the evident 
wish on the part of the Convention, to have the Consti- 
tution of Maryland conform, as far as possible, to the best 
features embodied in the Constitutions of the other states 
of the Union.** 

We now come to a most unpopular feature of the Con- 
stitution, which contributed largely to the intense opposi- 
tion that was aroused against it, and which caused it to be 
ratified only by a very narrow majority. This was, the 
method and regulations under which it was to be submitted 
to the people for their ratification. 

As prescribed by the new Constitution,*" the Governor 
within five days after the adjournment of the Convention 
was to issue a proclamation, calling for an election to be 
held in the city of Baltimore on October 12, 1864, and in 
the counties of the state on October i2th and I3th. At 
this election the vote was to be by ballot, and the question 
to be decided was the ratification or rejection of the Con- 
stitution. But it was further provided, that the test oath 
prescribed in the Constitution for all future elections after 
the Constitution should be adopted, was to be required of 
all voters in the election on the ratification of that instru- 
ment itself. Again, we have seen that the article on the 
Elective Franchise required*" the General Assembly to 
"provide by law for taking the votes of soldiers in the 
army of the United States serving in the field." In order 

808 See Deb., i, 360, 394-5; ", IO34-5, 1056, 1267, 1317-8, etc. 
""Art. xii, sees. 8-10. *" Art. i, sec. 2. See page 71. 

435] The Maryland Constitution of 1864. 89 

not to lose this vote in the ratification of the Constitution 
and in the regular national and state elections of Novem- 
ber, 1864, special provisions were inserted 208 prescribing 
rules and regulations for the soldiers' vote, which were 
to remain in force till the Legislature should provide by 
law, as required above, some other mode of taking the 
same. All returns of the vote were to be made to the 
Governor, who was made sole judge of their correctness, 
and whether or not they were cast according to the pro- 
visions of the new Constitution. 

Naturally the minority hotly objected to these provi- 
sions, being opposed to this method of virtually putting 
the Constitution into operation before it was adopted by 
thus prescribing the mode of voting upon itself. The 
majority answered that the people in their sovereign ca- 
pacity had by the election of the previous April made the 
Convention Bill the supreme law of the land, and that in 
this matter the Convention would be acting according to 
the provision of that instrument that the new Constitution 
" should be submitted to the legal and qualified voters of 
the State, for their adoption or rejection, at such time, in 
such manner, and subject to such rules and regulations" as 
the Convention might prescribe. The majority further 
claimed that the test oath only required the same qualifi- 
cations as those prescribed by the Convention Bill in the 
clause following the above, which provided that the " pro- 
visions hereinbefore contained for the qualification of 
voters," etc., should be " applicable to the election to be 
held under this section." The minority answered that the 
" rules and regulations " the Convention might prescribe 
could only be those under which the previously legal and 
qualified voters were to vote. They also asked, why there 
was any need of submitting the Constitution to the people 
at all, if the Convention had such absolute power under the 
Convention Bill. They held, further, that the objection- 
able provisions deprived certain citizens of their right to 

** Art. xii, sees. 11-16. 

90 The Maryland Constitution of 1864. [43(5 

vote, and introduced a perfectly new class of voters hith- 
erto unknown to the laws. The majority answer to this 
last was that those citizens barred from voting had already 
been practically disfranchised by laws of the National Gov- 
ernment, and by decisions of the various courts, and that 
the soldiers were not a new class of voters, but merely 
citizens exercising their right of franchise under new con- 
ditions. The entire debate was to a great extent along 
these lines, and was sustained with exceptional brilliancy 
by the minority members, Mr. Miller of Anne Arundel in 
particular making a speech which showed great power of 
logical thought and analytical reasoning. As usual, the 
result was foreordained, and the provisions passed by the 
usual party vote." " An attempt of the minority to insert 
a provision providing for new elections in those districts in 
which there might be military interference was promptly 
voted down. no 

From the entire absence at the time of the April elec- 
tion, as far as we can see, of any such extreme views as 
to the proper construction of the Convention.Bill, it is safe 
to judge that the people of the state had no idea of the 
extent to which these measures would finally be carried. 
The majority members of the Convention, however, with 
rare acuteness saw their opportunity, and were quick to 
avail themselves of it. Their action, to say the least, was 
clearly revolutionary, and its justification or condemna- 
tion at the present day depends upon individual ideas as 
to the legitimacy of such measures in time of war, and 
whether, as seen in the final results, the end justified the 
means. It only remains to add at this point, that the final 
draft of the new Constitution was adopted by the Conven- 
tion on September 6, by the party vote of 53 yeas to 26 
nays, 17 members being absent and not voting. 211 After 
the usual closing remarks by the President, the Conven- 
tion adjourned. 

*"For above see Proc., 602-4, 611-3, 670-81; Deb., iii, 1708-19, 
1724-56, 1758-71. "' Proc., 672-3. au Proc., 770-1. 


In accordance with the eighth section of the twelfth ar- 
ticle of the new Constitution, Governor Bradford on Sep- 
tember 9, 1864, issued a proclamation calling an election 
on October 12 and 13 for the purpose of ascertaining the 
sense of the people in regard to the adoption or rejection 
of the document. Copies of the Constitution were imme- 
diately distributed throughout the state, and a fierce polit- 
ical campaign was entered upon in regard to it. The radical 
Union men very generally approved of the work of the 
Convention, but many of the more conservative citizens, 
including some of those who had hitherto supported the 
Unconditional Union party, came out publicly in open op- 
position and used their influence to prevent the adoption 
of the Constitution. Hon. Reverdy Johnson is perhaps 
the most striking instance of this latter class. He 
strongly condemned the requirement of the test oath in 
the vote on the Constitution, and declared that the Con- 
vention in requiring it exceeded its powers by thus acting 
in a legislative capacity. The Democrats of the state re- 
ceived the Constitution with a storm of indignation, and 
at once entered vigorously upon an attempt to defeat it 
in the coming election. This movement was doubtless 
precipitated by the action of the thirty-five minority mem- 
bers of the Convention, who immediately after the ad- 
journment of that body, and before they had returned to 
their homes, drew up and- published 1 a unanimous pro- 
test, addressed " To the Voters of Maryland," in which 
they denounced the Convention and the new Constitution 
in the strongest terms. After arguing that the period of 
a civil war was not the time in which to make any or- 

1 See " Sun," Sept. 10, 1864. 

92 Tlie Maryland Constitution of 1864. [438 

ganic changes in the Constitution or system of govern- 
ment, and urging the " violent partisan measures " of the 
majority members as proof of this, they proceeded to spe- 
cifically condemn numerous provisions of the Constitu- 
tion, in particular those providing for emancipation, for 
paramount allegiance to the United States Government, 
and also the various test oaths, the increase in the legis- 
lative representation of Baltimore City, the soldiers' vote, 
and the manner of submitting the document to the vote of 
the people. They further said " Not only is this most 
wanton violation of your rights aggravated by a contempt- 
uous refusal to allow the least shadow of compensation, 
but every possible means have been used to extend and 
perpetuate the injury. The authors of these outrages, 
apparently sensible that at some future day, a returning 
sense of justice might succeed the mad fanaticism of the 
hour, and reverse the iniquitous decrees they had pro- 
nounced, have actually assumed the prerogative of judg- 
ing for all time to come, for the future generations of the 
people, and the future Legislatures of the state. The fiat 
has gone forth that no future Legislature shall have power 
to make compensation. The finances of the state may be 
ample, the people of the state may desire to repair, to some 
extent at least, this enormous injury, the Legislature may 
unanimously respond to this sentiment, but no, the lu- 
natics of 1864 have manacled their hands, they have no 
constitutional power to do justice. Is the equal to such 
enormity to be found in the history of any civilized region 
of the world? We fearlessly answer, no! Other people 
have manumitted negro slaves. Most of the states north 
of us have manumitted negro slaves. Did any one of 
these do this thing as the Convention has done it? Most 
certainly not." 

They closed by characterizing the Constitution as a 
" wholesale robbery and destruction perpetrated by those 
whose cardinal duty was to provide for the security of the 
persons, the protection of the property and the preserva- 

439] The Maryland Constitution of 1864. 93 

tion of the inalienable rights of all the citizens of the 

Certain citizens of Cecil County presented a memorial 
to Governor Bradford objecting to the test oath and ap- 
pealing to him to instruct the Judges of Election to disre- 
gard it, and also to disregard it himself by announcing 
that he would not count the votes of any county in which 
the oath had been administered to voters. Governor 
Bradford, on September 21, 1864, wrote a letter to Mr. D. 
R. Magruder, the chairman of the committee which pre- 
sented the above petition, and declined to take such action 
as beyond his jurisdiction, maintaining that his duties were 
merely ministerial. He also defended the action of the Con- 
vention on the ground that the body had plenary powers, 
and cited the Convention of 1850-1 as a precedent. 

Mr. George Vickers, a prominent citizen of Chester- 
town, wrote several letters to the Governor advocating 
the same line of action on his part, and in reply Governor 
Bradford again took a like stand as to limitation of his 
powers. 1 

The Democrats, who were now becoming better organ- 
ized throughout Maryland, in their State Convention which 
met in Baltimore on September 29, 1864, by a unanimous 
vote passed resolutions offered by Mr. Clarke of Prince 
George's in which the new Constitution was condemned, 
and its defeat at the polls was urged. 8 Many political 
meetings were held throughout the state by both parties, 
and the various newspapers contained numerous articles 
for and against the Constitution, many of them contribu- 
ted by the foremost men of the state. On the other 
hand, the following from the Centreville (Queen Anne's 
County) Observer 4 may be taken as an instance of the atti- 

1 This correspondence was made public during the first week of 
October. See " American," October 5, 1864. 
* " Sun " and " American " of September 30, 1864. 
4 Quoted in " American," October 6, 1864. 

94 The Maryland Constitution of 1864. [440 

tude of the more extreme pro-slavery Democrats. In op- 
posing the Constitution, this paper said " Would to God 
we could picture sufficiently plain the importance of the 
issue now pending in this state. We . . . leave the reader 
to decide for himself whether he will perpetually rob his 
neighbour of his happiness, or whether he will vote against 
the inhuman, illegal and unjust instrument, and thereby 
declare himself a friend to the oppressed. . . . Should this 
infamous instrument be adopted, a perpetual line of demar- 
cation will undoubtedly be drawn both in political, social 
and business life. No man who entertains any regard for 
his liberty, will, after the adoption of this Constitution, aid 
in the support of those who vote for it, and for his oppres- 

But the Union party was none the less active in its sup- 
port of the new Constitution, and the state was vigorously 
canvassed by Montgomery Blair, Thomas Swann, Henry 
Winter Davis, William T. Purnell, Archibald Stirling, Jr., 
Henry Stockbridge, John V. L. Findlay, and other promi- 
nent men of that party. 

The arguments advanced by both sides in this campaign 
were largely a repetition of those brought forward by the 
Union and Democratic members of the Convention in 
their discussion of the provisions in regard to submitting 
the Constitution to the people." 

Throughout the entire movement leading to the Consti- 
tution, President Lincoln had been a close and interested 
observer, and had given it his constant personal encour- 
agement." Being requested to aid in this final contest, on 
October 10 he wrote a letter to Henry W. Hoffman, 1 
which was read that evening at a Union mass-meeting in 
Baltimore. In this letter he stated that he would be 
" gratified exceedingly if the good people of the state 
[would], by their votes, ratify the new Constitution." 

5 See pages 89-00. 

8 Nicolay and Hay, " Life of Lincoln," viii, 465. 7 Ibid., p, 467. 

441] The Maryland Constitution of 1864. 95 

The election took place as ordered, on October 12-13. 
There seems to have been little or no disorder or military 
interference at the polls, although it was charged that in 
some districts gross frauds were perpetrated. 8 These 
could hardly have been very extensive on either side, as 
recourse would undoubtedly have been had to the courts 
in the same manner as was done in the case of the sol- 
diers' vote. The result of the regular state vote showed 
that the Constitution had been defeated by an adverse ma- 
jority of 1995." Of course everything now depended on 
the result of the soldiers' vote, the returns of which were 
slowly coming in. The opponents of the Constitution now 
attempted to throw out this latter vote, and thus insure 
the final defeat of the document. On October 24, 1864, 
an application was made to the Superior Court of Balti- 
more City (Judge Robert N. Martin) on behalf of Samuel 
G. Miles for a mandamus directed to Governor Bradford, 
commanding him to exclude all votes cast at any place 
outside of the state of Maryland from the count upon the 
question of the adoption of the Constitution. The peti- 
tioner stated that he was a qualified voter of Maryland 
according to the existing Constitution, but had been un- 
lawfully excluded from voting by the Judges of Election 
because he refused to take the oath illegally prescribed ac- 
cording to the new Constitution. He further averred that 
the soldiers had not been subjected to the oath according 
to the requirements of the new Constitution, and hence 
their votes should not be counted if the above action of 
the Judges of Election was sustained. Also by this same 
document the petitioner stated that he would be unlawfully 
deprived of his property in slaves without any compensa- 
tion therefor. The court dismissed the petition on the 

8 "Sun," Oct. 13; Frederick "Examiner," Oct. 19; Denton 
"Journal" (quoted in "Sun" of Oct. 24); "American," Oct. 29. 
See also Scharf, " History of Maryland," iii, 596. 

9 See appendix for detailed vote. 

96 The Maryland Constitution of 1864. [442 

same day, on the ground that no sufficient reason was 
given for its interposition. From this decision an appeal 
was at once taken to the Court of Appeals. Prior to this, 
the same petition had been presented to the Circuit Court 
of Anne Arundel county (Judge William H. Tuck), had 
been likewise dismissed and an appeal taken. Further, 
pending these proceedings still another petition, in behalf 
of E. F. Chambers and others, was presented to the Cir- 
cuit Court of Baltimore County (Judge John H. Price) and 
also to the same Anne Arundel Court, praying for an in- 
junction to restrain the Governor from counting the sol- 
diers' vote. It was dismissed by both courts and likewise 

This made four appeals, and hearing on them was be- 
gun in the Court of Appeals on October 27, 1864. After 
disposing of some technicalities as to the eligibility of cer- 
tain Judges to sit in the trial of these cases on account of 
their owning slaves, the case was argued by I. Nevitt 
Steele, William Schley " and T. S. Alexander on behalf of 
the appellants, and by Henry Stockbridge and Henry Win- 
ter Davis for the other side. On October 29, 1864, the 
court, through Hon. Richard J. Bowie, the Chief Justice, 
gave its decision unanimously sustaining Judge Martin in 
his order dismissing the first case." 

While these proceedings were in progress, application 
was made to Governor Bradford for permission to can- 
vass the returns of the soldiers' vote made to him, of which 
he was sole judge, and to show cause why certain of these 
votes should be rejected and not counted. The Governor 
consented, and the votes and returns were canvassed in 
detail, William Schley arguing the question against ad- 
mitting them, and Archibald Stirling, Jr., and Alexander 

10 Not the member of the Convention. The latter was Frederick 
Schley, of Frederick county. 

u Deb., iii, 1915-9; 22 Md. Reports, 170, Miles vs. Bradford. 
Also see contemporary newspapers. 

443] The Maryland Constitution of 1864. 97 

Randall in their favor. Governor Bradford gave his de- 
cision on the numerous questions raised as to their 
legality, in a lengthy opinion, dated October 28, 1864, and 
published simultaneously with his proclamation declaring 
the final result of the total vote on the Constitution. The 
objections raised by Mr. Schley were mainly on the ground 
of technicalities, as to requiring the oath of the soldiers 
who voted, as to the paper on which the ballots were 
printed, as to counting the votes of certain companies not 
attached to any regiment, etc. 

Out of the total of 3186 votes cast by the soldiers, 285 
votes " for," and 5 " against " the Constitution were re- 
jected, and 2633 votes " for " and 263 " against " it were ac- 
cepted. Adding these latter numbers to the vote of the 
state, it made a total of 30,174 for the Constitution, and 
29,799 against it, leaving the small majority of 375 in its 
favor, an exceedingly close result in a total vote of nearly 
60,000. On October 29, 1864, Governor Bradford issued 
his proclamation declaring the new Constitution adopted, 
and causing it to go into effect on November I, 1864. 

It should be observed that the overwhelming prepon- 
derance of the favorable vote on the part of the soldiers 
does not necessarily presuppose fraud or unfairness on 
the part of either the civil or military authorities. Men 
thrown together in the camp, or standing side by side on 
the field of battle would naturally be largely of one mind 
on political matters. This was seen in the case of the 
votes of the soldiers of various other states at this period. 
Also, men who were offering their lives in defense of their 
principles would not be apt, from motives of legal expe- 
diency, to hesitate in regard to measures considered as 
calculated to advance their cause." 

We thus come to the end of the movement which 

12 The War Department issued at Washington on Oct. i, 1864, 
" General Order, No. 263," intended to insure, as far as possible, 
freedom and fairness in the vote of the soldiers of the various 

98 The Maryland Constitution of 1864. [444 

occupied the thought of the people of the state during 
nearly two years preceding the close of the war. It was 
largely the result of a long-existent feeling of the need of 
reform in the social and political life of Maryland, and 
although precipitated and somewhat changed in character 
by the influence of the Civil War, would undoubtedly have 
been successful at some later day. In this latter case it 
would likely have been less extreme, yet perhaps more 
thorough, in its results, and hardly would have suffered 
the effects of the inevitable reaction which in the year 
1867 not only abrogated the objectionable features of the 
Constitution of 1864, but rejected some of its greatest 
merits as well. But the fact that these merits and defects 
once existed in the organic law and government of the 
state, will not be forgotten by the more thoughtful people 
of Maryland, but will serve as a valuable experience to 
guide them in many hitherto untried paths of reform. 
Furthermore, if the justification of a higher national ne- 
cessity is denied the Union men of 1863-4, their courage 
shown in the abolition of slavery in the state of Maryland 
deserves the thanks and appreciation of their posterity. 


Vote on the Constitution, October 12-13, 1864: 

For yAgainst 

Allegany county 1,839 964 

Anne Arundel county 281 1,360 

Baltimore city 9,779 2,053 

Baltimore county 2,001 1,869 

Carroll county 1,587 1,690 

Caroline county 471 423 

Calvert county 57 634 

Cecil county 1,611 1,611 

Charles county 13 978 

Dorchester county 449 1,486 

Frederick county 2,908 1,916 

Harford county 1,083 1,671 

Howard county 462 583 

Kent county 289 1,246 

Montgomery county 422 1,367 

Prince George's county 149 1,293 

Queen Anne's county 220 1,577 

Somerset county 464 2,066 

St. Mary's county 99 1,078 

Talbot county 430 1,020 

Washington county 2,441 985 

Worcester county 486 1,666 

27,541 29,536 

Soldiers' vote 2,633 263 

30,174 29,799 

Majority 375